Standing Committee D

[Mr.Mike Weirin theChair]

Clause38

Prohibitionon works withoutconsent

Amendmentproposed [this day]: No. 54, in clause 38, page 21, line 27, after‘of', insert ‘materially'.—[Mr.Paice.]

Questionagain proposed, That the amendment bemade.

Michael Weir: I remind the Committee that with this we arediscussing the following amendments:
No. 55, in clause 38, page 21,line 31, after ‘of', insert‘permanent'.
No.56, in clause 38, page 21, line 33, at endinsert—
‘(d) the parking ofvehicles used asaccommodation.'.

Jim Knight: I was talking about electric fencingwhen we stopped, and I hope that I had said enough to persuade theCommittee and the hon. Member for South-East Cambridgeshire (Mr. Paice)that electric fencing can be just as much of an impediment to access aspermanent fencing. We remain concerned that we should not exclude itspecifically.
I wastalking about amendment No. 55 and the definitional problems that theword “permanent” might present. In any case, we do notsubscribe to the premise that what one might call temporary fencingshould simply be left out of the scope of the controls.
I have a note in respect of thecontribution from my hon. Friend the Member for Stroud (Mr. Drew), whoI am pleased to see returning to his place, that says that we all knowof cases where stables on sleds are claimed to be temporary underplanning legislation but remain in place for years. I personally wasnot familiar with stables on sleds, but there are all sorts of ways ofconfusing the notion of things being temporary or permanent. We need totreat the whole subject with some care.

Elfyn Llwyd: I shall notdelay matters, but given that the Minister has just said that theamendments do not find favour with him, could he tell the Committeewhether it is possible to fast-track such applications? In other words,what is involved in getting the necessary consent, how long will ittake and what is the cost involved?

Jim Knight: I am grateful for that question. Recently, anexcellent code of practice was published with endorsement from variousbodies including English Nature, the Countryside Agency, the NationalTrust and the Open Spaces Society. It sets out useful guidelines on howcontroversy can be minimised and co-operative working maximised whenphysical changes such as fencing on a common are being contemplated sothat that fast-tracking can occur. We will be considering andconsulting on whether the power in clause 43 should be used to exemptworks of any particular character from the clause 38controls.
I noted,for example, the comments from the hon. Member for Meirionnydd NantConwy (Mr. Llwyd) about restocking after foot and mouth disease andabout hefted flocks. It might be possible—I do notknow—to use clause 43 to make some exemptions.
Generally, we cannot sensiblyput fast-tracking on the face of the Bill. We want to ensure that theprocedures are appropriate and proportional. Views differ widely aboutwhether works are beneficial and a fast-track system per se mightamount to pre-judging the merits of an application and run the risk ofunfairly sidelining one of the those views. We hope that we have theright balance and that the use of the code of practice willhelp.

Philip Dunne: I am grateful for theopportunity to serve under your chairmanship,Mr.Weir.
I want to drawto the Minister’s attention to a case just outside myconstituency, at Llynclys common in North Shropshire. An applicationwas made by the Shropshire Wildlife Trust, which manages part of thecommon, to erect fencing to protect biodiversity and to reintroducegrazing after the common had been under-grazed for a number of years.It took a total of three years to get the necessary consents, includingthe consent of the Secretary of State, and the process was eventuallycompleted in 1998. Obviously, it is conceivable that procedures havebeen speeded up in the past few years, but I have my doubts. Someguidance needs to be provided on the question of fast-tracking and howlong it will take in practice.

Jim Knight: I am certainly interested in such examples, wherethe delays and periods of time taken to process applications areunacceptable. My officials and I would want to ensure that we can dealwith such issues as speedily as possible. If controversy has beenminimised at the point of application, that makes things considerablyeasier and moreachievable.

James Paice: Before theMinister moves on to the last amendment in the group, which is slightlyseparate, I shall challenge him, having listened to what hesaid.
The Ministerdoes not seem to believe in any sort of de minimis situation, to repeata phrase that I used earlier. My right hon. Friend the Member forPenrith and The Border (David Maclean) referred to a temporary bit offencing to seal a hole in a wall during repair. Is it really theMinister’s view that everything, apart from any exemptions thathe may come up with under clause 43, should go to the Secretary ofState? Fundamentally, I was trying to introduce a sense of proportion as towhich things must undergo the inevitable panoply of time andbureaucracy involved in going to the Minister or the Secretary ofState.

Jim Knight: I understand that the hon. Gentleman’sintention is sound. I agree that we need to make things as efficient aspossible. As I said before lunch, it is very unlikely that trivial orinsignificant works on commons would be regarded as contraventions ofclause 38 as it is worded, because it uses the same wording as section194 of the Law of Property Act 1925. During the last 80 years, we havefound that there is effectively some de minimis, and the courts are notwilling to take action if frivolous, minor pieces of work are broughttothem.

James Paice: But as the hon. Member for Meirionnydd Nant Conwysaid this morning, we do not want to find out whether the court willact on it. By the time such a case gets to the court because somebodyhas raised a complaint, the commons association or whoever did thatminimal work has gone to the huge cost of employing legal advice andrepresentation, not to mention the cost to the public purse oforganising the court. We are trying to avoid all that. Simply sayingthat the court will not listen to the complainant and will find againstthem rather than the person who did the work is not really the samething. We are trying to prevent that situation from arising in thefirstplace.

Jim Knight: I have no desire for people to go to court unlessthey need to. The balance of judgment is whether the Committee believesthat a great queue of people are waiting for the opportunity to reportlandowners to court for undertaking the most trivial of works, and thatwe therefore need to pin the matter down in legislation, or whether itbelieves that we need to keep our present flexibility and therÃ(c)gime that has served for the past 80 years. To get into theproblems of defining words such as “permanent”, inrespect of fencing, puts the balance in the wrongplace.

David Drew: I am now in thefortuitous position of having the National Trust briefing, which I didnot have earlier, so I have greater sympathy with what the hon. Memberfor South-East Cambridgeshire is trying to do. As the right hon. Memberfor Penrith and The Border said, the issue is the definition of“permanent”. I could be persuaded if there were a way todefine what is likely to be referred to the Secretary of State withoutusing the word “permanent”. That sounds as though itwould not allow any discretion, and I always prefer to avoid going tocourt. The Minister might be able to consider that. Surely a positioncan be arrived at between mine—I want some greaterprotection—and that of the Opposition, who want to allow work tobe done without going to somebody further up theline.

Jim Knight: A position can be arrived at. It can be arrived atby using clause 43. If we can identify a form of fencing, for example,that does not prejudice the open character of the commons but achievesthe sort of effect that we have discussed—protectingbiodiversity or protecting people from falling down deep holes inCumbria—it might be appropriate to make a blanket exemption through clause 43 for that sort of work. Thatis why I am talking about flexibility, which the clauseprovides.

James Paice: Would that include the possibility of a timescale? Does the Minister envisage that clause 43 will exemptworks—an electric fence, for example—that is only therefor six months? Could a time scale be part of anexemption?

Jim Knight: I can perhaps reflect on that, and get someadvice about it. You never know, I might come up with an answer beforetoo long, or by the time we come to clause 43, given that we are nowdiscussing clause 38. We shall see. We shall have time to have anotherlook at the matter when we have finished the Committeestage.
Amendment No.56 is an ingenious proposal. I am tempted to say, “Nicetry,” but that would trivialise what I know is a seriousproblem, especially in respect of Travellers’ vehicles. Iimagine that the majority of Committee members would sympathise withthe wish to deal with such problems when they occur and powers are inplace to enable local authorities to tackle them. For example, localauthorities can make byelaws, which are regulated under the Inclosure Acts or use their own local Acts. They may even make use of the offenceagainst camping on urban commons under section 193 of the Law ofProperty Act 1925.
Amore recent measure, part V of the Criminal Justice and Public OrderAct 1994, especially sections 62A to 62D, also deals specifically withthe problem. Those provisions were inserted into the 1994 Act by theAntisocial Behaviour Act 2003 and create new powers and procedures fora senior police officer to remove such vehicles from the land inappropriate circumstances. Section 62D ensures that the powers areexercisable specifically on common land. They have been available sinceFebruary 2004 and I am sure that members of the Committee willencourage their local authorities to use them.
We all want new measures to bein statute, but the problems arise when local authorities do not usethem. I am not enthusiastic about adding more measures if localauthorities are not using the existing legislationadequately.
The hon.Member for North Cornwall (Mr. Rogerson) raised the matter ofvehicles advertising things. I agree with the hon. Member forMeirionnydd Nant Conwy that it is probably a matter for the planningauthority and the planning rÃ(c)gime, and happily I am notresponsible for it.
The hon. Member for MeirionnyddNant Conwy also mentioned 4x4 vehicles. Works that present noimpediment to able-bodied people in trying to address the problem mightnevertheless impede the disabled; other works might impede horseriders, those exercising common rights and, dare I say it, even thosewho are lawfully allowed to drive on the commons. I argue that theclause as drafted ensures that all these issues are considered and donot get overlooked. However, perhaps someone will come up with aningenious device that will put a constraint on 4x4s if they are causinga problem and churning up the common, but allow the other users, whomwe want to be able to enjoy the commons, to do so. If such a device is found and isseen consistently to work, clause 43 can be used in that respect.Exemptions will be for minor and temporary works, so a time scale isinherent in the concept that lies behind clause 43. I hope that thathelps the hon. Gentleman.
On the matterof mineral workings, which the hon. Member for Meirionnydd Nant Conwyraised, consent is needed for almost all significant works on commons.We consulted with the industry before removing the general exemptionthat was granted 80 years ago when works control on commons as a wholewas first introduced, but which we cannot now justify sustaining.Clause 38 consent will not be needed for mineral workings that alreadyhave planning permission when the Bill becomes law, provided that theterms of the permission are complied with. That is so even if the timelimit for implementation of the permission is extended. I hope thatthat helps the hon. Gentleman and I also hope that, on that basis, theamendments will be withdrawn.

James Paice: I shall not detain the Committee by going back over amendments Nos. 54 and 55; we have probably gone as far as we can on those two. I understand the Minister’s points, but I hope that we can find a way through clause 43 to ensure that we do not have to have recourse to law to deal with what I would consider to be vexatious or minimal issues—those brought by somebody who has a bee in his bonnet and wants to pursue it. It is all very well to say that the courts do not have to find for the complainant; that is small comfort for a defendant who has been caused a lot of trouble, inconvenience and cost. Perhaps we can return to that under clause 43 or outside the Committee. If we cannot, we will have to do so on Report, because important issues arise from the temporary nature of some actions.
On amendment No. 56, which concerns Travellers, I am glad that the Minister did not read out the first comment that he was going to make. That would have trivialised an important situation. As one of many Members who have such problems, I am very familiar with the legislation. It is easy for a Minister to read out all the legislation that exists, but some of us know that it does not work like that on the ground. The 1994 Act, which my right hon. Friend the Member for Penrith and The Border piloted through the Committee stage as Minister of State in the Home Office, made significant changes, and as shadow Minister for the police I was instrumental in persuading the Government to make further changes in the context of the Anti-social Behaviour Act 2003.
As far as common law is concerned, the lord of the manor is still required to agree the removal of Travellers before the police can do anything. That is often the stumbling block, particularly if he is not easily contactable or, for some reason, is unwilling to take action. I am simply trying to underline the fact that the situation is illegal and there are still serious issues to be addressed. At this very moment, there are commons in my constituency that have Travellers on them, and there are serious difficulties in removing them, despite all the attempts to legislate. We should not trivialise the issue in any way.
We have had a good debate on an important matter, and there are further amendments to be debated under this clause, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Knight: I beg to move amendment No. 9, in clause 38, page 22, line 7, leave out from ‘are' to end of line 8 and insert
‘carried out under a power conferred in relation to that particular land by or under any enactment;'

Michael Weir: With this it will be convenient to discuss Government amendments Nos. 10 to 13.

Jim Knight: I will attempt to be brief. Normally, under clause 38, proposed works that would impede access to or over common land would need the prior consent of the national authority. Such works might include fencing, building, surfacing or earth works. Subsections (6)(a) and (6)(b) exempt a particular type of work from that requirement. Amendments Nos. 9 and 10 are designed to emphasise the fact that in order to be exempt in that way, works must be carried out under a power conferred by or under an enactment—for example, those undertaken by a statutory board of conservators. Amendment No. 12 is consequential.
Amendment No. 11 relates to commons management schemes made under the Metropolitan Commons Act 1866 or the Commons Act 1899. Essentially, such schemes give conservators in the first case, or district councils in the second, powers to manage commons for public benefit. Clause 38(6)(c) exempts works authorised under such schemes from national authority consent unless consent is required by the scheme itself. Since drafting we have discovered that existing schemes are not consistent in the way that they treat particular types of work such as erecting buildings, so the amendment makes the position on consent consistent across such cases. Amendment No. 13 is a technical amendment to put it beyond any doubt that, as for consents under the current works control regime, clause 38 consent is free-standing and does not affect other rights or constraints that may have a bearing on the lawfulness of the works proposed.

Amendment agreed to.

Amendments made: No. 10, in clause 38, page 22,line 9, leave out from ‘where' to end of line 11 and insert
‘the works are carried out under a power conferred by or under any enactment applying to common land;'
No. 11, in clause 38, page 22, line 13, leave out ‘the appropriate national authority' and insert ‘any person'—[Jim Knight.]

James Paice: I beg to move amendment No. 57, in clause 38, page 22, line 16, at end insert—
‘( ) works necessary to comply with management agreements between a statutory commons association and a public body.'.

Michael Weir: With this it will be convenient to discuss the following amendments:
No. 58, in clause 38, page 22, line 16, at end insert— 
‘( ) works which have been agreed by a statutory commons association as necessary for the welfare of animals.'.
No. 59, in clause 38, page 22, line 16, at end insert— 
‘( ) works which have been agreed by a statutory commons association as necessary to prevent the unlawful access of vehicles onto the common.'.
No. 60, in clause 43, page 25, line 4, at end insert—
‘(e) the welfare of animals.'.

James Paice: This group follows on from the group that we were discussing a few moments ago. The intention is the same. It is not to undermine the role of the national authority but to minimise unnecessary intervention and bureaucracy in order to speed up the process of management of the commons. I have no doubt that the Minister will again refer us to clause 43; as it has no amendments, we may have a long debate on that clause when we reach it. I am seeking to amend subsection (6), as opposed to subsections (2) and (3) in the previous group. I confess to being at somewhat of a loss as to the difference between this and clause 43. Subsection (6) states:
“The prohibition in subsection (1) does not apply to”
paragraphs (a), (b), (c) and (d). Clause 43 also lists circumstances where clause 38 is not to apply. I am not too sure what the distinction is: I might just as well have tabled these amendments to clause 43.
The four amendments address key areas. Amendment No. 57 is straightforward. It may well happen—indeed, it is probably desirable—that a statutory commons association makes an agreement with a public body, probably Natural England or the Countryside Council for Wales. The purpose of the amendment is to facilitate the carrying out of works under such an agreement. An agreement with a public body should be sufficient to give the works the go-ahead. Amendment No. 58 applies where a statutory commons association believes that an action is necessary for the welfare of animals. Amendment No. 60 seeks to insert a similar phrase in clause 43.
The House is always concerned about the welfare of animals. Even with the speeded-up process and the codes of practice, sometimes actions necessary to assist the welfare of animals need to be carried out very quickly. Whatever system is in place, it will not always be quick enough. Therefore if it is felt that a measure is needed to protect animals—predominantly grazing animals, but it may be wild animals—a decision of the statutory commons association should be sufficient.
Amendment No. 59 comes back to the point raised by the hon. Member for Meirionnydd Nant Conwy a few moments ago and which I mentioned in Second Reading. It is the issue of unlawful access of vehicles on to the common. I heard what the Minister said about disabled access. Obviously none of us wants to effectively debar the disabled from accessing commons in their appropriate vehicles. However, the Minister knows full well that there are a number of commons with serious problems of incursion. That might be illegal and the Law of Property Act 1925 might say that a person should not go more than 10 m off a highway, but we know that it happens. There are times when the only way to stop that happening is to erect what some people call “tank traps” and “ditches” and all sorts of other impediments to vehicular access to a common. That has nothing to do with the right to roam or people walking and enjoying their rights of common, but relates to people taking vehicles on to the common, which is often to the detriment of other users.
I hope that the Minister will go away and think in more detail about the matter because there needs to be provision for such measures when local people agree that it is necessary in order to protect the rights of the vast majority—the legal users of the common, whether they be holders of commons rights, walkers or anybody else who wishes to access the common lawfully.
I hope that the Minister will understand that the amendments are designed to be constructive and helpful, to reduce bureaucracy and to assist works that protect our commons, rather than those that hinder them. I hope therefore that he will look favourably upon, if not the fine detail, at least the principles behind them, particularly on the issue of unlawful vehicular access. I hope that he will agree to go away and reflect further, because clearly I am not the sole proponent of that view.

Jim Knight: I have always reflected carefully on everything that the hon. Member for South-East Cambridgeshire says, and I will continue to do so.
The hon. Gentleman asked about the distinction between the exemptions under clause 38 and those under clause 43. Under clause 38, those exemptions are automatic—the regime will not apply, per se—whereas clause 43 provides the national authority with the power to exempt particular categories of works by order subject to the negative resolution procedure. I hope that that helps to set out the difference.
Clause 38(6) gives a global exemption from consent only to works carried out under statutory powers. Those must relate to either the common in question or common land in general. For example, such powers might be exercised by a board of conservators, a local authority or a statutory undertaker. Works carried out or organised by a commons association using powers conferred under the Bill are excluded specifically from the exemption because commons associations are not required or even intended to be fully representative bodies, as was discussed on Tuesday during our deliberations on the amendments tabled by my hon. Friend the Member for Stroud. Often they represent only those with a legal interest in the land because of the limited nature of the functions that can be conferred on them under part 2 of the Bill.
It would be inappropriate for the Bill to give commons associations carte blanche to undertake particular types of works on a common because they are not fully representative. For example, management agreements might envisage extensive lengths of fencing to separate areas of different grazing intensity, but it would not be right for the Bill to rubber stamp such works by associations if they would impede access to a common, or to allow them to make agreements that rely on such works. Those proposed works should receive the same scrutiny as they would if they were proposed by the owner of the land.
On animal welfare and vehicular access, the examples given in this debate and elsewhere of why certain works might be needed for animal welfare reasons reinforce, to my mind, the need for such works to receive careful scrutiny. For example, using fencing to channel animals away from recreational hot spots, or to keep them from straying on to roads could have a significant and long-lasting effect on the open and unenclosed nature of commons about which I talked. Proposed work on shelters or feed stations for animals is of a scale and significance that should receive proper scrutiny through the consent rÃ(c)gime and I am resistant to doing anything that threatens animal welfare.
I responded earlier to the hon. Member for Meirionnydd Nant Conwy on vehicle access and there is not much to add. I questioned my officials when I had read the briefing from the Country Land and Business Association which mentions tank traps. I am satisfied that it will be possible to use clause 43 as and when such devices come forward so that they do not prejudice disabled horse riders and others who want legitimate access. I hope that the Committee will be equally satisfied.
We shall resist amendment No. 60 for similar reasons. We intend to consult widely on whether and how we should use the power in clause 43 to exempt particular types of work from the regime, but we are clear, as I said earlier, that we will use it only in relation to minor or temporary work. The sort of work that the hon. Gentleman has in mind is significant and potentially controversial in its effect on a common and its use by others. As I said, such work needs proper scrutiny and I hope that the hon. Gentleman will withdraw his amendment.

James Paice: I will not prolong the Committee’s consideration. I have made my points and the Minister understands that there is concern on the Opposition Benches about the general impact of clause 38 on sensible measures that people may feel are necessary and about the need to reduce what appears to be a massive sledgehammer to crack a nut: having to go to the Secretary of State for approval for virtually everything. That is what we are trying to remove.
I am sure that the Minister will have caused further debate on clause 43. We may return to some of the issues then and, I suspect, on Report. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendments made: No. 12, in clause 38, page 22, line 17, leave out subsection (7) and insert—
‘(7) In subsection (6)(a) the reference to an enactment does not include Part 2 of this Act.'
No. 13, in clause 38, page 22, line 29, leave out from ‘under' to end of line 31 and insert
‘subsection (1) of this section constitutes consent for the purposes of that subsection only.'—[Jim Knight.]

Clause 38, as amended, ordered to stand part of the Bill

Clause39

Consent:general

Jim Knight: I beg to move amendment No. 14, in clause 39, page23, line 12, leave out
‘the personto whom the consent isgiven'
andinsert
‘any person carrying out orproposing to carry out works in accordance with theconsent'

Michael Weir: With this it will be convenient to discussGovernment amendment No.15

Jim Knight: I shall be brief. Amendment No. 15 allowsregulations to set a time limit for making applications to vary orrevoke modifications or conditions. Subsection (5) is not intended toprovide a lasting opportunity for challenge to the nationalauthority’s determination. It is important to achieve clarity assoon as possible about the terms on which consent is given and ifcircumstances change later, a fresh application for consent may bemade.

Amendmentagreedto.

Amendmentmade: No. 15, in clause 39, page 23, line 13, at endinsert—
‘(5A) Regulationsmay specify a time limit for the making of applications undersubsection (5).'—[JimKnight.]

Clause39, as amended, ordered to stand part of theBill.

Clause40

Consent:procedure

James Paice: I beg to move amendment No. 66, in clause 40, page23, line 28, at endinsert
‘including guidelines ontimescale fordecision.'.

Michael Weir: With this it will be convenient to discussamendment No. 106, in clause 40, page 23, line 36, at endadd—
‘(k) for theappropriate national authority on receiving an application to bedetermined under sections 38(1) and 39(5) to inform the local authoritythat acts as the local planning authority for the area in which theworks are proposed;
(l) for anyplanning authority receiving an application for development on commonland or a town or village green to bring such application to theattention of the appropriate national authority, community or towncouncil and any of statutory or voluntary commonsassociation.'.

James Paice: This amendment follows on from our earlier debateand the intervention by my hon. Friend the Member for Ludlow (Mr.Dunne) about his experience of a time-consuming process in northShropshire.
Theamendment was suggested by the Woodland Trust as a result of seriousproblems that it has had waiting for the Secretary of State’sconsent to fencing when it has tried to reintroduce grazing for goodconservation management on parts of commons. It fits entirely with our earlier discussion, and this time I am trying tointroduce into the procedure for consent in clause 40 a requirementthat the regulations include guidelines on the time scale for makingdecisions. Speeding up the process would be to the advantage ofeffective commons management, which is largely what the Bill isabout.
I have no doubtthat although the Minister will not want to accept the amendment as itis, he accepts the principle behind it, which is that speed is of theessence. If he does not want to include such a requirement in theregulations, he must put some predication somewhere that matters willbe dealt with as swiftly as possible so that decisions can be made andactions followtherefrom.

Roger Williams: I rise tospeak to amendment No. 106. The protection of common land and town andvillage greens is an important matter for all the reasons that havebeen discussed. For various reasons, it is sometimes difficult toprotect such land from inappropriate development. For example, theowner may be absent or uninterested in the land, or the land may be soremote that development can occur on it without the appropriateauthorities being aware of it from the beginning. It is for that reasonthat the Government have introduced this part of the Bill, which dealswith the protection of common land and town and villagegreens.
The intentionof the amendment is to make such double protection even more effectiveand efficient. Almost all of clause 40 deals with things that must beincluded in regulations, and we would like to add that the nationalauthority should alert the local planning authority of potentialdevelopments so that it can take action to ensure that a planningapplication is solicited if one is needed for the work, or at leastkeep an eye on the land on which the development isproposed.
The secondpart of the amendment, which would require the planning authority togive notice, would make the most of the double protection that theGovernment want in the Bill. I hope that the Minister sees fit toaccept the amendment so that the requirement can be included inregulations and make the most of the intendedsafeguards.
I drawattention to a golf course that appeared on Cilsanws common, which isin a constituency that neighbours mine. It is causing considerableproblems to the commoners and the people who live around the common.Somehow, it appeared without planning permission or permission undersection 194 of the Law of Property Act. My amendment may not befoolproof, but it would contribute in some way to safeguarding againstcompletely illegaldevelopments.
As theMinister knows, it is always more difficult for a borough, nationalauthority or local planning authority to deal with a development afterit has been completed, as they must go through the process ofenforcement, appeals and goodness knows what. It is better to deal withit before it happens, and my amendment would in some way contribute toa more effective process andsystem.

Philip Dunne: I rise briefly to support my hon. Friend the Memberfor South-East Cambridgeshire in relation to amendment No. 66. I am grateful to him for referring to my previousintervention in support of it.
My point to the Minister isthat most amendments to common land management procedures are connectedto the growing cycle. The improvement of biodiversity and the reseedingof ground where grass needs to be replaced happen over not weeks ormonths, but an entire growing season. If we miss the growing season oneyear, it is one year later before we can start to take the measuresneeded. Putting pressure on the statutory authority to accelerateapplications is vital; otherwise those problems will persist for yearafter year.

Jim Knight: We have no problem with the spirit of amendmentNo. 66. We agree about the desirability of improving timing andstreamlining, but clause 40 contains the powers necessary to prescribethe procedures and timing that must be adhered to when works on commonsare proposed. Equally, we can issue guidelines on timings if weconclude that that is more appropriate. We will consider the issues indetail and consult publicly about how we intend to operate the system.I hope that that provides the hon. Member for South-East Cambridgeshirewith the reassurance that he seeks.
I am afraid that we will alsoresist the amendment tabled by the hon. Members for Brecon andRadnorshire (Mr. Williams) and for North Cornwall. The first aspect ofthe amendment is unnecessary, because regulations under clause 40(2)(f)on the steps to be taken by the national authority on receipt of anapplication would require it to tell the planning authority ifappropriate. We intend to consult fully on the content of thoseregulations, and that will provide us with the opportunity to put thatcase.
The secondaspect of the amendment would require the planners to tell theauthority and others about planning applications for commons andgreens, but that would not be an appropriate legal requirement. Localplanning authorities must decide, with due regard to planninglegislation and guidance, what action to take on receipt of planningapplications and how to determine them.
We intend to issue to localauthorities guidance on the implementation of this legislation. Iexpect the guidance to draw planning authority attention to the issuesthat arise when development is proposed on a common—perhaps toavoid the bizarre example from the hon. Member for Brecon andRadnorshire of a golf course on a common for which there was nopermission. Having said that, I do not want to comment on an individualcase.
I expect theguidance to draw planning authority attention to those issues, becauseof the special protections that apply to commons. Commoners' rights overmany commons and some greens must not be prejudiced by any development.The sheep must be protected from the golf ball. I hope that, on thatbasis, the hon. Gentleman will not press hisamendment.

Roger Williams: I am not satisfied with the Minister’sresponse. I am sorry to have caused him physical inconvenience at thisstage of the debate, but it is important to put in place as muchprotection as we can for these precious national treasures. I am therefore tempted to pressfor a vote, and I intend to do so.

James Paice: I moved the lead amendment, and I did not expectthe Minister to accept it—surprise, surprise. However, Iunderstand what he said, which was that, under clause 40, he will beable to introduce in the regulations some points about timings. That isimportant.
My hon.Friend the Member for Ludlow yet again inserted an important note ofcommon sense—this time about growing seasons and timing. It isimportant to receive a decision in time to act at the right time ofyear. Nevertheless, I look forward to holding the Minister to accountto ensure that he introduces such regulations. In expectation of that,I beg to ask leave to withdraw the amendment.

Amendment, by leave,withdrawn.

Amendmentproposed: No. 106, in clause 40, page 23, line 36, at endadd—
‘(k) for theappropriate national authority on receiving an application to bedetermined under sections 38(1) and 39(5) to inform the local authoritythat acts as the local planning authority for the area in which theworks are proposed;
(l) for anyplanning authority receiving an application for development on commonland or a town or village green to bring such application to theattention of the appropriate national authority, community or towncouncil and any of statutory or voluntary commonsassociation.'.—[Mr.Williams.]

Questionput, That the amendment bemade:—

TheCommittee divided: Ayes 6, Noes9.

Questionaccordingly negatived.

Clause 40 ordered to standpart of theBill.

Clause41

Enforcement

David Drew: I beg to move amendment No. 78, in clause 41, page23, line 40, at endinsert—
‘(1A) It is the dutyof the commons registration authority to prevent, as far as possible,the unlawful encroachment on any common land for which it is theregistration authority'.
I could go on at considerablelength about the amendment but, although it is important, I shall not.From what I have read, those in another place were beginning to run outof steam towards the end of the Bill. They considered how localauthorities that presumably will be the registration authorities willhave the means by which they can pursue enforcement, as well as whowould be entitled to take such action. As always, there was worry abouta vexatious litigant and who would bear the cost of suchproceedings.
The mainpurpose of the amendment is to put a duty on local authorities toremove illegal works. It is welcome that the Government areintroducing, under section 194 of the Law of Property Act 1925, thesame procedure in respect of all commons to ensure consistency, but itseems anomalous that the public will have the power to take actionagainst unlawful works, the construction or semi-construction of abuilding, although there will be no duty on local authorities to takeenforcementaction.
The proposalis a probing amendment to ascertain the meat of the Bill and toconsider whether actions can taken by various parties that may be theowners of the commons or, indeed, the association or committee. Whataction will the Government take to give the registration authoritiesthe responsibility to do something about such encroachments? The issueis important. Those of us who have commons in ourconstituencies—it seems to be virtually everyone in theCommittee—will expect to hear what the Government are doing andwhether they would consider puttinga duty on the registrationauthorities to take enforcementaction.

Elfyn Llwyd: The amendment, which would place a duty on local authorities is reasonable, and would improve the Bill. The question is whether they have the necessary money and expertise to take enforcement action. I understand the principle, and it is a good idea.
I should like to ask the Minister one or two questions, given that we did not succeed in the attempt to bring proportionality into clause 38 by inserting the word “materially” to avoid de minimis cases. The enforcement duty for infringements will lie with county councils, local authorities and parish councils. That will open it up to every person on the street. It is to be hoped that people will not use the law for the wrong reasons or pursue minor infringements such as the use of temporary pens for collecting sheep, butts for shooting and so on. That is a danger.
We have had this debate twice before, and I do not want to delay matters. The Minister says that the county court will not make an order, but getting that far is a waste of the court’s time and everybody’s money. It is undesirable that the Bill should leave an avenue open for people to take what might well be vexatious action for whatever reason—they might have a personal grudge; I do not know. I am concerned about the provision, because it could be misused.
My second question for the Minister is whether, having given individuals the right to litigate by taking such matters to court, the clause would enable them to take enforcement action against perceived existing breaches as well as future ones. I can anticipate his response to my first question, because we have been over that ground, but I should like him to respond to my second question about whether the clause would cover existing breaches.

Jim Knight: I will think about that last point while I deal specifically with amendment No. 78, which would place a duty on commons registration authorities to resist encroachment on common land. I am grateful to my hon. Friend the Member for Stroud for tabling it.
The Bill goes some way toward improving controls on works on common land. It will clarify the application of the controls, modernise the consent regime and, as we heard, enable any person to enforce against unlawful works. It will no longer be possible to ignore the controls in the hope that they will not be enforced.
As I have said, I want Natural England and the Countryside Council for Wales to become the Government’s champions for the management and well-being of common land. We see a role for them in encouraging communities to take a more proactive attitude to protecting their common land.
Registration authorities, in common with other councils, will have power to enforce against encroachments, but my hon. Friend will appreciate our position on the matter. A local authority’s priorities are for the authority, and not central Government, to decide. It is appropriate to give the power but not the duty.
The Bill is not just a legislative instrument. It will raise the profile of common land. We will be working closely with local government in the next few years to implement the legislation, assuming that it becomes an Act. That will involve issuing circulars explaining authorities’ powers as well as their duties under the Act and encouraging their greater involvement in the management of common land.
I counsel my hon. Friend against seeing new duties necessarily as a solution to a problem. I am sure that he shares my desire to see greater access to the countryside, but duties alone are not always fulfilled, as we have seen with the management of the public rights of way network by certain local highway authorities in certain parts of the country. It is only as a result of a combination of new duties—such as rights of way improvement plans, together with guidance and a great deal of hard work by, in the case of England, the Natural England partners and the Department for Environment, Food and Rural Affairs in raising the profile of rights of way in the past few years—that we are now seeing results in making the network better available for use. I want to see a similar effort made to raise the status of common land.

David Drew: I understand what my hon. Friend is saying. Obviously, I shall not be pressing the amendment to a Division, but I am interested in the difference between someone who blocks a common and someone who blocks a road. A local authority has a duty to keep the highway open as, incidentally, do members of the public, who operate under a power if they see someone blocking the highway for whatever reason. The clause is really about consistency and making sure that local authorities do what they should do. As we know from previous debates, there are cases where, because of the parking of a vehicle or some other reason, a local authority can choose to do nothing. That is just not acceptable.

Jim Knight: There are all sorts of rights of way and local authorities make their judgments about the blockages on them. If it is a busy highway, they are more likely to take action than if it were a quiet footpath. They exercise their duties with discretion, and that is my point. Therefore, I can not accept the amendment, but I hope that my hon. Friend will accept that the Bill takes us into a new era for common land. I am confident that, in future, the profile of common land will be much higher and the controls far less likely to be breached with impunity. We all have a role in encouraging local authorities to use their powers in the public interest and I know that all members of the Committee are keen to protect and enhance our commons.
With respect to the comments made by the hon. Member for Meirionnydd Nant Conwy about retrospective enforcement against existing unlawful works, there was significant debate in the other place where views on both sides were expressed. We amended the Bill on Third Reading in the other place to prevent any person from taking enforcement action against unlawful works before its introduction. Local authorities and the legal interest in the land remain able to enforce against such works within the normal time limits. On reflection, we do not feel that it is fair to extend retrospectively the scope for enforcement in that situation. I see the hon. Gentleman nodding and therefore hope that my explanation is sufficient. I ask him not to press the amendment.

David Drew: I am concerned that, under clause 42, power will be granted to local registration authorities to amend existing schemes of work. Although we have to be careful that we are not allowing a diminution of the responsibility of local authorities, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Jim Knight: I beg to move amendment No. 16, in clause 41, page 23, line 41, leave out from ‘order' to end of line 42.

Michael Weir: With this it will be convenient to discuss the following: Government amendments Nos. 17 and 18.
Amendment No. 79, in clause 41, page 24, line 4, at end add—
‘(2A) If the person carrying out the works fails to comply with an order under this section, an eligible person may carry out any outstanding requirements of the order and recover from the person in default the costs reasonably incurred by the eligible person in doing so.
(2B) If an eligible person other than a local authority considers that outstanding requirements under subsection (2A) are beyond the capability or resources of that person, they may require an appropriate local authority to carry out those requirements.'.
Amendment No. 80, in clause 41, page 24, line 4, at end add—
(a) If a person fails without reasonable excuse to comply with an order under subsection (2) above, he is guilty of an offence and liable to a fine not exceeding level 5 on the standard scale; and if the offence is continued after conviction he is guilty of a further offence and liable to a fine not exceeding one-twentieth of that level for each day on which the offence is so continued.
(b) Where, after a person is convicted of an offence under paragraph (a) above, the local authority for the common concerned exercise any power to remove the cause of the obstruction, they may recover from that person the amount of any expenses reasonably incurred by them in, or in connection with, doing so.'.

Jim Knight: The Government amendments are technical. I hope that the Committee will accept them.

Amendment agreed to.

Amendments made: No. 17, in clause 41, page 23, line 43, leave out
‘to remove the works and restore'
and insert
‘for removal of the works and restoration of'
No. 18, in clause 41, page 24, line 3, leave out
‘to carry out the works'
and insert
‘for the works to be carried out'—[Jim Knight.]

Clause 41, as amended, ordered to stand part of the Bill.

Clause 42

Schemes

Jim Knight: I beg to move amendment No. 19, in clause 42, page 24, line 9, leave out
‘at the commencement of this section'

Michael Weir: With this it will be convenient to discuss the following: Government amendments Nos. 20 and 21.
Amendment No. 81, in clause 42, page 24, line 13, leave out subsection (3).
Government amendments Nos. 22 and 23.

Jim Knight: Again, these are technical amendments, which I do not propose to comment on. I shall do the equivalent of moving them formally, while allowing my hon. Friend the Member for Stroud to get up and speak—should he really need to—in respect of his amendment.

David Drew: I shall be quicker on my feet in future. They used to say that when I played football.
Amendment No. 81 is intended to probe the Government by examining the powers to override existing schemes of management, which links directly with what I said about clause 41. I want to probe what the Government intend as the normal way of doing things. The amendment would ensure that the appropriate national authority cannot override an absolute prohibition of works contained in an existing scheme of management.
Schemes of management are important because they are the existing way in which things have been done and it would be wrong if the Bill superseded schemes that are already working well. Where they are not working well, I hope that Bill will give them a kick up the backside and make them improve.
It is somewhat sad that the clause appears to weaken the way in which existing schemes of management operate and I am looking for the Minister to assure me that that is not the intention. Where long-standing schemes—I could list them, but I shall not—are extant and deserve recognition, they do not need alteration. I hope that he will assure me that the Government’s intention is not to disrupt some of these schemes that go back a long way in history and work very successfully.

Jim Knight: Clause 42, as a whole, applies to land covered by an existing management scheme under either the Metropolitan Commons Act 1866 or the Commons Act 1899. Where the terms of such a scheme prohibit works without any scope for any person to consent to them, the clause allows such works if they receive consent under clause 38. Where such a scheme provides that works are permissible with the consent of the national authority, consent has to be given under the criteria set out in clause 38. These measures are designed to increase flexibility while improving consistency.
I shall resist my hon. Friend’s amendment because it would be a retrograde step. The whole point of subsection (3) is to avoid an absolute ban under an existing scheme on works on a common that would be beneficial, for example, by helping visitors to enjoy the common. This is not a matter of covering scheme commons with major new developments or removing people’s access rights. Rather, it is a matter of having the ability to do something if it is appropriate for the land, taking into the account all the checks and balances that the consenting scheme system involves and all the views expressed to the national authority on the subject. We do not want to shut down that new flexibility and I hope that my hon. Friend will not seek to press his amendment to a Division.

Amendment agreed to.

Amendments made: No. 20, in clause 42, page 24, line 11, after
‘Metropolitan Commons Act 1866 (c. 122)'
insert
‘which is in force at the commencement of this section'
No. 21, in clause 42, page 24, line 12, at end insert
‘which is in force at the commencement of this section'
No. 22, in clause 42, page 24, line 20, at end insert
‘and of any owner of the land (if not the person carrying out the works)'
No. 23, in clause 42, page 24, line 20, at end insert—
‘( ) Regulations may make provision as to the procedure to be followed in obtaining the consent of an owner under subsection (3) (and may include provision for the consent of an owner to be regarded as having been given where he has not objected within a period of time specified in the regulations).'—[Jim Knight.]

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43

Power to exempt

Question proposed, That the clause stand part of the Bill.

James Paice: I fear that the Minister has brought this debate on himself by making frequent references to this clause.

Jim Knight: It is a great clause.

James Paice: It may be a great clause, but I want to invite the Minister to explain, briefly, why that is. Without rehashing the ground that we have already covered, I should like to make two points. The first is that the Minister said earlier that the clause is specifically intended for minor and temporary works; that is its purpose. It does not say so anywhere, so I invite him to clarify that point. If that is the intention of the clause, should it not say so?
The second point is that subsection (1), which defines the orders, makes a lot of specific statements about
“the carrying out by a specified person of specified works on specified land; or...by a specified person, or a person of a specified description, of works of a specified description,”
and so on. The orders are going to be so specific that one wonders whether they will be of any value for exemptions. Officials of the national authority will have to do so much work looking at such a proposal to decide whether to exempt it that they might as well approve it. I had understood from the Minister’s interventions under clause 38 about this clause that it would deal with the problems that Opposition Members have mentioned, rather than unnecessarily requiring the national authority to deal with piffling—the Minister himself used the word trivial—issues.
As drafted, the clause does not achieve the objective that the Minister has proclaimed for it. I accept and support his remarks, but they do not reflect what clause 43 says. I suggest that, by the time officials have done all the work described in the clause in order to decide whether to exempt any work, the time, bureaucracy and cost—not just to the taxpayer but to the applicant—will have been so great that they might as well have gone through the approval procedure. That was the straightforward point that I wanted to make. I look forward to the Minister’s trying to clarify it for us.

Paddy Tipping: The hon. Gentleman is right to say that we need to clarify the point. This morning, under clause 38, the Minister was clear about the use of the words “temporary” and “minor”. I am keen to get that on the record. The problem is that we could have different views about the meaning of temporary and minor. I take temporary to mean weeks and months, rather than years. I have seen applications from bodies that are called temporary, but stretch into years. It would be useful to have an idea about what is considered temporary. We also need to discuss what constitutes minor.
This morning, the right hon. Member for Penrith and The Border (David Maclean) gave a number of examples of things that were clearly temporary, and the Minister told us that electric fencing would not be viewed as temporary. He is right. In many cases, clause 38 should be used. However, in response to the hon. Member for Meirionnydd Nant Conwy, he said that tank traps could be regarded as temporary. I am not sure that that is correct. We are talking about matters of judgment. I agree with the hon. Member for South-East Cambridgeshire that the measure will create a lot of work, a lot of difficulty and a lot of angst. It is in our interests to be as clear as we can about what the clause stands for and what we mean by temporary and minor.

Elfyn Llwyd: On a point of information and to try and enlighten the Committee, I should say that the hon. Member for Sherwood (Paddy Tipping) is quite right: we should tease out a bit more information on this issue. On the main road between Dolgellau and Bala, in my constituency we had temporary traffic lights for 27 years.

David Maclean: I want to return to the point about minor works and fencing. It is not fanciful; almost every day of the week in the Cumbrian fells and around the country, gaps appear in stone walls and six ft of wall falls down. Every farmer then automatically sticks a little bit of electric fencing or sheep netting on it. Under clause 38, they would have to apply for permission for that temporary fencing.
The Minister says, “No, don’t worry; clause 43 can exempt that sort of thing”, but will he confirm that clause 43 is general enough to exempt all farmers in that hypothetical situation, or would the farmer who has found a gap in his wall have to get a specific order to be exempted from the provisions of clause 38? I shall assume that none of us wants a farmer who puts up five yards of fencing for six weeks to have to go to the Secretary of State for an exemption.

Jim Knight: Generally, if a wall is bounding the common—on the perimeter, as is often the case—it is not part of the common, but the surrounding farm land. Therefore, the farmer can do what he likes with it. Obviously it is a different ball game if it is inside the common.

David Maclean: There will be a mixture and many walls will be inside the common. Cumbria is awash with walls; it is still a common, but there are walls across the parish boundary and temporary walls are used to hold sheep, particularly at lambing time.
On walls inside the common that are caught by the provision, will the Minister reassure the Committee that clause 43 will allow him to make a general order? He might be persuaded before Report that there is a genuine problem relating to the temporary stopping up of a hole in a stone wall with a fence. He might think, “Yeah, that’s okay, that is smaller enough, de minimis, minor and is not going to drive a coach and horses through the law; I am happy to allow that”. Under clause 43, will he be able to make general regulations that will apply to every farmer or commoner in the country?

Jim Knight: The right hon. Gentleman is talking about stopping up walls, but maintenance to existing works does not need consent.

David Maclean: We are narrowing it down, but what happens when all the stones have fallen down and there is a gap in the wall, which the farmer plugs with a temporary fence while he spends the next few weeks sticking the stones back up and rebuilding the wall with the intention of doing a bit a dry stone walling or dry stane dyking? Is that maintenance? It is the erection of a fence, not maintenance.

Jim Knight: My interpretation is that that would be maintenance because the farmer would not be erecting anything new or substantial while he maintains the wall. If I am wrong, I shall write to the right hon. Gentleman, but I am pretty sure that that would be the case.

David Maclean: I am grateful for that; we are getting some elucidation, but still dodging the point. The regulations that can be made under clause 43 are specific to individuals and commoners who have to come along and ask for an exemption. If the Minister finds another category of minor works that he thinks is perfectly okay to exempt under clause 38, such as fencing, it does not seem that clause 43 would provide the power to make that general exemption apply to everyone of a particular category. It seems that, under clause 43, he can make an exemption only once someone applies and goes through all the procedure to get that exemption and become a specified person with a specified works in a specified area. Will he be able to make general exemption powers apply to everyone without their having to apply?

Philip Dunne: I briefly endorse the comments made by my hon. Friend and by the hon. Member for Sherwood. I would like also to highlight two particular problems.
It seems unnecessary to burden commons associations with the cost of providing the input to enable an order on perhaps minor issues to be written in such specific language. The bureaucratic processing of all those orders would also increase costs in the Minister’s Department and should not be treated lightly, not least if he hopes to meet his Gershon efficiency targets.

Jim Knight: I am grateful for this debate because it helps to clarify matters. I was asked by the hon. Member for South-East Cambridgeshire and my hon. Friend the Member for Sherwood to clarify that we regard the provision as being for minor and temporary works. We do regard it as such, and I shall look at whether it is appropriate to put that in the clause title. However, for now, I can give the clarification that the Committee seeks.
There have been other questions about the clause being too specific. There is a danger that because the word “specified” is repeated so many times in subsection (1), one becomes blinded to some of the other words. Subsection (1)(a) is very specific; it uses the word “specified” three times. However, it ends with the word “or” before moving on to subsection (1)(b), which starts with “a specified person”, but then becomes more general by referring to
“or a person of a specified description, of works of a specified description on—
(i) any land; or
(ii) land of a specified description.”
Clearly, that allows us to issue exemptions to categories of works, rather than applying, as does paragraph (a), to specified persons doing specified works on specified land. I hope that that helps the Committee.
My hon. Friend the Member for Sherwood talked about tank traps. As I said to the hon. Member for Meirionnydd Nant Conwy, the Country Land and Business Association made an interesting point about tank traps. However, I said also that if we could find a suitable device, we might think about it. However, I am not sure that a tank trap is that device. I hope that that is helpful.

Question put and agreed to.

Clause 43 ordered to stand part of the Bill.

Clause 44 ordered to stand part of the Bill.

Clause 45

Powers of local authorities over unclaimed land

David Drew: I beg to move amendment No. 82, in clause 45, page 25, line 39, leave out ‘may'.

Michael Weir: With this it will be convenient to discuss the following amendments: No. 83, in clause 45, page 25, line 40, after ‘(a)', insert ‘shall'.
No. 84, in clause 45, page 26, line 1, after ‘(b)', insert ‘may'.
No. 85, in clause 45, page 26, line 3, at end insert
‘; and
(c) may apply (under section 97 of and Schedule 6 to the Land Registration Act 2002 (c. 9)) to the registrar to be registered as the proprietor of a registered estate in the land as if the authority has been in adverse possession of the estate for a period of not less than ten years ending on the date of application.
(2A) The land registered in accordance with subsection (2)(c) shall vest in the local authority under this section together with section 10 of the Open Spaces Act 1906 (c. 25) (maintenance of open spaces and burial grounds by local authority) or, if that is the case, the Commons Act 1899 (c. 30).'.
No. 86, in clause 45, page 26, line 7, at end insert
‘; and
(d) a national park authority or area of outstanding natural beauty conservation board'.
No. 87, in clause 45, page 26, line 7, at end insert—
‘(4) If the land is regulated in accordance with a scheme under the Commons Act 1899 (c. 30), a parish or community council may only apply for registration in accordance with subsection (2)(c) if the powers of management of the scheme have been delegated to that council.'.
No. 104, in clause 45, page 26, line 7, at end add—
‘(4) Where subsection (1) applies and a commons association established under Part 2 does not exist in relation to the land, a local authority may assume and exercise any of the rights of management of the land which would otherwise be held by the owner, until such time as a commons association exists or the owner is identified.'.

David Drew: Six of these amendments are in my name, but amendment No. 104 is in the name of the hon. Member for Brecon and Radnorshire. I shall let him have all the fun of mentioning every common that might need to be included because its ownership is not clear. I shall stick to amendments Nos. 82 to 84, which are technical, and then say a little about amendments Nos. 85 to 87.
Amendments Nos. 82 to 84 try to clarify exactly what we would expect of a local authority when there is no known owner and a clear need for works to be done or stopped. This series of amendments is necessary to identify sites of special scientific interest that are in an unfavourable condition and it would force local authorities to take responsibility for that common land.
Although amendment Nos. 82 and 83 simply change “may” to “shall” and amendment No. 84 includes “may” elsewhere, they seek clarification from the Government. There seems to be a vacuum in responsibility for the protection of common land with no clear ownership. After all, it is in the public interest for such land to be protected. Again, this is a matter for which local authorities should be duty bound. I understand what my hon. Friend said earlier about the relationship between duties and powers, and I intend to push that issue. However, unlawful interference is not uncommon, and it is too easy for local authorities to say that they do not have any responsibility. They certainly do not have the means.
On amendments Nos. 85 to 87, the Government suggested that section 9 of the Open Spaces Act 1906 can be used to acquire unclaimed land. The difficulty is that section 9 allows purchase only by agreement, and that is not possible if the owner is unknown. Other statutes provide compulsory powers. For instance, there is section 89 of the National Parks and Access to the Countryside Act 1949, and schedule 2 to the Compulsory Purchase Act 1965, which includes an untraceable owner procedure that requires obtaining a valuation, paying it into court and then obtaining a vesting order.
It is essential that we find a mechanism for local authorities to deal with the problem of land that has no clear ownership. Section 8 of the Commons Registration Act 1965 allows for such a mechanism with regard to village greens. The mechanism is not nearly as clear for common land. I hope that my hon. Friend will be able to clear that up. I also support the hon. Member for North Cornwall, whom I am sure will explain why we tabled amendment No. 104.

Daniel Rogerson: I wish to speak to amendment No. 104, which is tabled in my name and those of my hon. Friends and the hon. Member for Stroud. In the same spirit as the hon. Gentleman’s amendments, this amendment is about the local authority taking action where land is not in the state that we would like to see. In many areas, the problem is that unclaimed land is used for purposes that are a nuisance to the local community. The landis not brought up to the standard that we wouldlike for environmental purposes, for maintaining archaeological features, or for ensuring that it is a useful amenity for the community and that it is used as it was originally intended. Our amendment seeks to ensure that a local authority would exercise powers in the absence of a commons association and take action, so that those issues could be resolved to the benefit of the local community and those who enjoy the land.

Jim Knight: The amendments tabled by my hon. Friend the Member for Stroud and the hon. Member for North Cornwall would go further than clause 45 permits and impose a duty on local authorities to take action. As my hon. Friend said, we recently discussed the issue of duties and powers, and I shall not dwell on it. Authorities should retain the discretion to act, and they should be responsive to local priorities and electors.
Moreover, it would be quite wrong to compel authorities to act in every case regardless of the circumstances. An area of public land might be of little public value, remote from any public access, and of no use to agriculture, and the threat might be trivial or ephemeral, but a duty would require the local authority to take up the cudgels just the same as if there were a rave on the village green.
I accept my hon. Friend’s admonition that given the discretion to act, local authorities too often do not act all. That point has been made to me by others, and I agree with him that that is sometimes unsatisfactory. However, we hope to do two things that I believe might help. First, we will work with local authorities and the Local Government Association to improve understanding of the legislation and the authorities’ role in implementing it. That will include the publication of guidance to authorities, and we will consult on what that guidance might say about authorities’ use of the powers under the clause.
Secondly, we are considering whether local access forums could advise authorities on taking action under clauses 41 and 45 to promote public access to common land, particularly where public access is currently restricted or excluded. I am sorry to disappoint my hon. Friend again, but I hope that my explanation of where the Government stand on amendments Nos. 82 to 84 is adequate.

Paddy Tipping: In general, I support the approach of my hon. Friend the Member for Stroud, but I think that there is a strong case for using local access forums. That would be a much better way forward than the first alternative involving education and consultation. I press the Minister hard to consider local access forums as the way forward, because they would consist of local people who know local problems and can often find local solutions. He has found a neat way forward.

Jim Knight: I am grateful to my hon. Friend for his support for the second option. I consider myself well pressed.

David Drew: Like a flower.

Jim Knight: The Corby trouser press of the Committee system.
I turn to amendments Nos. 85 and 87. I would be first to acknowledge that in the common land policy statement of 2002, we committed to the vesting of unclaimed land in a suitable body for long-term management. In hindsight, however, there is a risk of confusing the questions of ownership and management. We all want to promote better management—that is what the Bill is all about—but we do not need to tackle difficult questions of ownership unnecessarily.
I accept that the 1965 Act provided for the vesting of unclaimed greens in local authorities. We think it unlikely that the same approach could be taken now. The 1965 Act created no mechanism to reverse vesting, for example, and today such an approach would be likely to have human rights implications. The fact that vestings under the 1965 Act gave rise to few problems perhaps reflects the lower value of a green to the owner than common land and, therefore, the lower likelihood of challenge from a dispossessed owner. Whatever the merits of that approach, it does not commend itself today.
In responding further to amendments 85 and 87, I shall also refer to amendment No. 104, which was spoken to by the hon. Member for North Cornwall. It would enable a local authority to assume full powers of management of unclaimed common land where no commons association exist. We agree that local authorities should be empowered to take on the management of unclaimed commons so that they can be managed by local people with community interests at heart. However, local authorities can already do this in the majority of cases, through management schemes under the Commons Act 1899. Moreover, our amendments to that Act will ensure that such schemes are fit for purpose in the 21st century.

Daniel Rogerson: I am grateful to the Minister for his reassurances, although I am cautious in my welcome. He referred to the majority of cases. There might well be cases that cannot be resolved through the powers that he described. How does he suggest those issues should be resolved?

Jim Knight: I shall write to the hon. Gentleman and to the Committee to sketch out what that small number of cases might be. Then he can judge whether he wants to do anything further.
It is perhaps unlikely that local authorities would want to invest resources in managing a common that could be reclaimed at any moment by its owner, but a scheme under the 1899 Act anticipates and protects against that outcome. I hope that my hon. Friend the Member for Stroud will accept that if an authority has full powers of management, it does not need to gain ownership of the land, as the amendment proposes. Beyond the 1899 powers, it is also possible to manage unclaimed land under part 2 of the Bill.
I hope that the hon. Member for North Cornwall will also agree that powers of management cannot be bestowed like confetti, with authorities choosing when and where to exercise them. They must be properly contemplated and any commitment entered into should be by the making of a scheme.
Finally, I am glad to be able to give my hon. Friend the Member for Stroud some reassurance on amendment No. 86—I regret that I have been a little negative about most of his recent amendments. Clause 45 as drafted would have the same effect if read in context. Schedule 9 to the Environment Act 1995 sets out various powers which National Park authorities may exercise alongside local authorities, and paragraph 6(a) of schedule 5 to this Bill amends schedule 9 to the 1995 Act to include reference there to clause 45. It may seem odd not to include a specific reference in clause 45, but it is helpful if the 1995 Act maintains in one place an up-to-date list of these shared powers.
The powers of a conservation board are set out in the order establishing the board. If the local authorities promoting a new conservation board wish it to have the powers in clause 45, they can ask for that outcome. That is the way that the legislation works, and it may be of interest to the Committee to know that the boards established for the Chilterns and the Cotswolds will be able to exercise the powers inclause 45.

David Drew: I think I will quit while I am on a winning run, especially as the Minister mentioned the Cotswolds, which affect my constituency. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 45 ordered to stand part of the Bill.

Clause 46

Powers relating to unauthorised agricultural activities

David Drew: I beg to move amendment No. 88, in clause 46, page 27, line 11, at end insert—
‘(7A) An order made under paragraph (b) of subsection (7) may authorise the relevant authority to carry out any requirement of an order which a person on whom a notice is served under this section has failed to comply with and to recover from that person the costs reasonably incurred by the relevant authority in doing so.'.
I will not delay the Committee for long. The amendment would simply strengthen the provision when there is no immediate sanction available for a court order for the removal of unlawful works that is not carried out. The idea is to give greater power to the relevant authority to take action to ensure that the problem is cleared up. It parallels section 137ZA of the Highways Act 1980, which allows the relevant authority to make good unlawful agricultural work.
With your tolerance, Mr. Weir, because presumably there will not be a stand part debate, I have been asked by the National Farmers Union whether we would consider the impact of non-agricultural work, especially by those who want to bring vehicles on to a piece of common land or a village green. There was an attempt in the other place to include a clause on how vehicles of various descriptions would be excluded. It would be useful to know whether the Government would consider tabling a proposal on Report for a reserve power to deal with non-agriculture abuses of common land.

Elfyn Llwyd: I support the hon. Gentleman’s final comments. He is probably right in saying that, in a way, this is a stand part debate. I should hope that, in view of my sickening sycophancy towards you this morning, Mr. Weir, you will permit me to take two minutes of your precious time.
I fully support the point that the hon. Gentleman made about reserve power, because as the clause is currently framed it deals simply with breaches in agricultural practice. As we have mentioned many times during the debates on Tuesday and today, there is a great concern about non-agricultural transgressions, that is, the damage all round that motorcycles and 4x4 vehicles do to agricultural interests and the natural, living environment. One hopes that the Minister will consider this point carefully and respond, because there is surely a good cause for making the clause a general reserve power for the Minister, not just confining it, as is the case at present, to unauthorised agricultural activities. We have been urged to take this course of action by the National Farmers Union, the National Sheep Association and the Welsh Commoners Association, to which I am indebted for telling me about it.

Jim Knight: I shall address the amendment, then deal with the other points that have been made.
The purpose of the amendment is to allow a national authority to take action to stop an unauthorised activity on a common and recover its cost, where a person fails to comply with a court order requiring them to cease that activity. We do not see a role for a third party, such as the national authority, trying to physically stop an unauthorised agricultural activity. If, for example, a court orders a person to cease depasturing livestock beyond the number of rights held, the authority would have to find, identify and remove the offending animals. That would be difficult on a large upland common. The authority would then have to engage in further proceedings in order to recover costs from the individual concerned, which might be unsuccessful if they had already ignored the original court order. A more effective approach is to use the judicial system to ensure that the individual, who knows his livestock and where they graze, personally takes action. That may take longer to achieve in some circumstances, but in the long run it will be more cost-effective. The provision carries the ultimate sanction, once a number of hurdles have been overcome, if it becomes necessary, of contempt of court proceedings.
My hon. Friend the Member for Stroud and the hon. Member for Meirionnydd Nant Conwy asked why we have addressed agricultural activities only and wanted us to think about non-agricultural activities harming a common. As they anticipated, my answer is that a range of instruments already exists for dealing with unlawful activities that might be damaging a common, such as driving a motor vehicle over it, or building on it without consent. It would not be appropriate for the national authority to have powers of enforcement against criminal activities that lie more properly with the police. We have to be clear about where those responsibilities lie.
Section 59 of the Police Reform Act 2002 allows the police to seize any mechanically propelled vehicle being driven in a careless or inconsiderate manner on or off road.

Elfyn Llwyd: I hear what the Minister says and I know that he is trying to be helpful, but I do not recall any prosecution or action by the police along the lines that he is referring to. In fact, the police cannot wait on the uplands for a 4x4 to cross the common. It is virtually impossible to enforce the measure. In fact, it is very much like the Hunting Act 2004—no real regard is given to the way in which it is enforced. The Minister’s words give me no comfort, and I would urge him to have another think about the matter.

Jim Knight: I will, as always, reflect on the proceedings of the Committee. Not only has the Home Office issued guidance to police in England and Wales on the legislation and the circumstances in which it might be used, but the power has been used very effectively in a recent clampdown in Wales, where a great many section 59 notices were issued to off-road bikers who were riding illegally over commons in Caerphilly and two bikes were confiscated. In that case, the police had teamed up with countryside rangers from the local authority and the Forestry Commission to target the problem.

Elfyn Llwyd: I am encouraged by that; obviously I must go home more often.

Jim Knight: I am grateful to the hon. Gentleman for raising the issue and for pushing me as hard as he did, because it gave us the opportunity to identify that example. I hope that others will pay close attention to the proceedings of this Committee and will notice that. Perhaps hon. Members here will go out and evangelise about the excellent work that has gone on in Caerphilly—they could campaign in their own constituencies for the powers to be properly used, or use the antisocial behaviour toolkit issued by the Home Office as part of its Together campaign.

David Drew: I shall withdraw the amendment, although I think that the point about non-agricultural use of common land could be worth reflecting on. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 46 ordered to stand part of the Bill.

Clause 47 ordered to stand part of the Bill.

Clause 48

Inclosure

Question proposed, That the clause stand part of the Bill.

Michael Weir: With this it will be convenient to consider new clause 1—Notice of inclosure—and Government amendment No. 29.

Jim Knight: Section 31 of the Commons Act 1876, with certain exceptions, requires anyone intending to inclose or approve part of a common to publish notice of that intention in a prescribed way at least three months beforehand.
Inclosure and approvement relate solely to land that is still subject to commoners’ rights—the traditional common, rather than waste land of a manor that has no common rights over it. Inclosure—with an ‘i’, not an ‘e’—is the term that describes the owner taking actions on the ground that have the effect of completely stripping the common of the commoners’ rights. Approvement is a lesser form of that, whereby the owner takes into his exclusive use part of the common that is not required to satisfy the commoners’ rights, while leaving the remainder subject to those rights.
Section 31 provided an opportunity for commoners or others to object to either type of change before it happened, so it was a very important provision in its time. However, it was, in effect, superseded by the protection offered by section 194 of the Law of Property Act 1925. Any action on the ground that would be sufficient to constitute an inclosure or approvement would certainly impede the commoners’ access over the land in question, and therefore require consent from the Secretary of State under section 194. That would explain why we know of no case in which the action required by section 31 of the 1876 Act has actually been taken. When part 3 replaces section 194, it will similarly require consent for works that impede the commoners’—or anyone else’s—access to or over the land.
We could simply leave section 31 extant, but there is a slight possibility that it could cause confusion with the procedure that we will prescribe for proposed works on a common. Our objective for part 3 is that the procedures and criteria for proposed works be as consistent and clear as possible. On balance, therefore, it is right to repeal section 31 as a provision that has become redundant.
Subsection (2) of new clause 1 is a consequential amendment to section 3 of the Metropolitan Commons Act 1878, which refers to section 31 of the 1876 Act.

Question put and agreed to.

Clause 48 ordered to stand part of the Bill.

Michael Weir: We now come to clause 49 and a number of other clauses to which no amendments have been tabled. Does any member of the Committee wish to speak to any of the clauses?

Jim Knight: On a point of order, Mr. Weir. Do Government new clause 1 and Government amendment No. 29 need to be moved?

Michael Weir: I understand that they will be moved later.

Clauses 49 to 59 ordered to stand part of the Bill.

Clause 60

Extent

Amendment made: No. 38, in clause 60, page 31, line 35, leave out subsection (2).—[Jim Knight.]

Clause 60, as amended, ordered to stand part of the Bill.

New Clause 1

Notice of inclosure
‘(1) Section 31 of the Commons Act 1876 (c. 56) (three months' notice of claim to inclose to be given in local papers) shall cease to have effect.
(2) In section 3 of the Metropolitan Commons Act 1878 (c. 71), for “Sections thirty and thirty-one” substitute “Section 30”.' —[Jim Knight.]

Brought up, read the First and Second time, and added to the Bill.

New Clause 2

Schemes under the commons act 1899
‘(1) The Commons Act 1899 (c. 30) is amended as follows.
(2) In section 1 (power of councils to make schemes for the regulation of commons)—
(a) in subsection (1), for the words from “their district” to the end substitute “in the public interest”;
(b) after that subsection insert—
“(1A) In subsection (1), the reference to the public interest includes the public interest in—
(a) nature conservation;
(b) the conservation of the landscape;
(c) the protection of public rights of access to any area of land; and
(d) the protection of archaeological remains and features of historic interest.”
(3) In that section, in subsection (3), omit the words from “, and for” to the end.
(4) In that section, after subsection (3) insert—
“(4) Regulations under subsection (3) may—
(a) prescribe alternative forms;
(b) permit exceptions or modifications to be made to any prescribed form.”
(5) In section 2 (procedure for making scheme)—
(a) for subsections (1) to (3) and the first paragraph of subsection (4) substitute—
“(1) A council is to make and approve a scheme under this Part of this Act in the prescribed manner.”;
(b) renumber the second paragraph of subsection (4) as subsection (2).
(6) For section 9 (power to amend scheme) substitute—
“9 Power to amend or revoke scheme
(1) A scheme under this Part of this Act for any common may, in prescribed circumstances, be amended in the prescribed manner.
(2) A scheme under this Part of this Act for any common may, where a new scheme is made under this Part of this Act for the whole of that common, be revoked in the prescribed manner.”
(7) For section 10 (byelaws) substitute—
“10 Byelaws
(1) A council which has made a scheme under this Part of this Act in relation to any common may make byelaws for the prevention of nuisances and the preservation of order on the common.
(2) Sections 236 to 238 of the Local Government Act 1972 (which relate to the procedure for making byelaws, authorise byelaws to impose fines not exceeding level 2 on the standard scale, and provide for the proof of byelaws in legal proceedings) apply to all byelaws under this section.”'—[Jim Knight.]

Brought up, and read the First time.

Jim Knight: I beg to move, That the clause be read a Second time.

Michael Weir: With this it will be convenient to discuss Government amendment No. 30.

Jim Knight: The Commons Act 1899 gives local authorities power to make schemes of management over particular commons. The proposals would update that power to make it fit for purpose in the 21st century.

Question put and agreed to.

Clause read a Second time, and added to the Bill.

New Clause 4

Duties of natural england
‘Natural England shall have a duty to promote the formation of statutory commons associations, the wellbeing of common land and the creation of village and town greens.'. —[Paddy Tipping.]

Brought up, and read the First time.

Paddy Tipping: I beg to move, That the clause be read a Second time.
By virtue of the nature of our work, we have spent a lot of time talking about the legislative framework of the Bill. I am worried that, because we have focused on that, we have not debated in great detail the vehicle that will drive the Bill’s important aims forward. As many members of the Committee have said, Commons Bills do not come often and the whole point of this Bill is to improve our common land.
My new clause, which is supported by my hon. Friends the Members for Stroud and for Pudsey (Mr. Truswell) is straightforward. Its aim is to place a duty on Natural England to bring forward three proposals, the first of which is to promote the formation of statutory commons associations. Throughout our discussions, there has been a recognition on both sides of the Committee that that will not be easy. People will hesitate to take the step to move from a voluntary association to a statutory association. They will need help, guidance and support. On Tuesday the Minister recognised, as he has done today, the importance of Natural England in such matters. His words were preceded by the comments of Lord Bach in the other place, who was talking strongly about how Natural England needs to be involved in the creation of statutory commons associations.
The second aim of the Bill is to promote the well-being of common land, which is why we have spent two days talking about improving common land and ensuring that SSSIs come up to status.
The third aim, which we have debated widely, is a laudable objective in itself. It is to promote more town and village greens. Research shows that people care about their local communities and environments. The creation of new village and town greens will not happen by itself. I want Natural England to be involved. It is a new body with a whole range of tasks before it. It faces a difficult period in being set up. I want Natural England to know that the Bill is important, and I want it to have the power to make sure that we have statutory commons associations, common land is in good condition and that we move radically and quickly towards the formation of new town and village greens.

Elfyn Llwyd: The argument put forward by the hon. Gentleman is perfectly reasonable. I do not come under the auspices of Natural England, but in my humble opinion, if the duty of promotion will fall on Natural England’s shoulders, it will be easier for it to promote movement if we have a new name for the commons bodies. In all sincerity, I believe that the name “commons association” is no good. It will create difficulties and it will make promotion difficult. We had a discussion on Tuesday when the Minister said that he would think about it. Whether we adopt the term commons council or another name is an important issue. It is not beyond the ken of all of us to find a word. Councils might be a proper name—I do not know—but associations in that context is not; it is a recipe for disaster and will not assist the Minister’s hopes in promoting anything.

David Drew: I support my hon. Friend the Member for Sherwood. He has made his argument clear. I have also made it clear that I prefer to talk about commons committees because of the debate that we had about councils, which I do not wish to reopen. I want to make a point about village and town greens. We have understandably taken a great deal of time discussing the minutiae of common land because the subject is hideously complicated. We would have spent most of our time searching through the interstices of every last detail with regard to such land. As for village greens, for which the Minister wears his other hat, the Government have a good story to tell about their work and that of the national lottery, which has found available money.
To finish on a more positive note, it is our objective, perhaps in word only if we are talking about the Government’s double devolution agenda and looking at trying to encourage neighbourhoods in urban areas, for every community, not only rural ones, to have a village or neighbourhood centre.

Tom Levitt: I have a lot of sympathy with the aims that my hon. Friend is trying to achieve through the new clause. On the creation of town and village greens and the role of Natural England, does he anticipate that the duty will be a general duty, or an advisory duty? Would Natural England be allowed some discretion to advise on what might be a good plan for a village or town green and what might be otherwise, or does he expect Natural England to support every application willy-nilly?

David Drew: I understand my hon. Friend’s situation—he is trying to forestall reopening that debate. I do not want to intrude on his private grief over what might happen if we compel Natural England to find village greens where they are not justified.
It is important to recognise that every community needs its own space to be protected. Giving that space the nomenclature of village or neighbourhood green, or whatever we want to call it—to return to the debate on who is likely to be responsible for it—would be an excellent thing for the Bill to do. I hope that, wearing his other hat, the Minister will go righteously from evangelism to promoting the measure as a good thing that comes on the back of the Bill.
The rest is rather technical. Even though it is important to underpin in statute what has been happening voluntarily for many generations, as my hon. Friend the Member for High Peak (Tom Levitt) said, it will not really set the world alight. What we are trying to do in the new clause could.

Paul Truswell: I echo the comments made by my hon. Friends the Members for Sherwood and for Stroud. One of the characteristics of this Committee is a preponderance of Members representing rural or largely rural seats. I speak mainly as a townie whose introduction to the arcane and abstruse but nevertheless absolutely gripping issue of commons has been through an example in my constituency, with which I have already bored Members on Second Reading and in Committee.
It is important that some body should be responsible for promoting awareness of town greens. The residents of many areas with town and village greens do not know that they have one because it is not formally designated. During debates, we have clearly identified that communities such as Yeadon in my constituency become aware that they could get that formal designation and all the protections that it encompasses only if they go through the application process to establish a town or a village green. Few people in Yeadon are aware that that is a possibility. Indeed, those who originally raised the idea were regarded as community eccentrics, as no one knew what they were talking about until their helpful Member of Parliament collected the information, much of which was provided by the Open Spaces Society.
However, organisations such as the OSS are small and have limited resources. They do a fantastic job of providing support and information, but they cannot easily discharge that role. I add my comments to those of my hon. Friends. There must be some organisation—Natural England seems to be a good choice—to promote awareness of town greens and provide support for people who want to go through an often convoluted and demanding process.

Jim Knight: I am grateful, as ever, to my hon. Friends. They will know that Natural England already has a power to carry out such activities when they benefit the natural environment. The Natural Environment and Rural Communities Act 2006 gives Natural England the overarching purpose of ensuring that the natural environment is conserved, enhanced and managed for the benefit of present and future generations. That includes promoting nature conservation and protecting biodiversity, conserving and enhancing the landscape, promoting public access and encouraging recreation in the countryside.
Natural England already has all the powers that it needs to carry out the activities set out in new clause 4 provided that they are beneficial to present and future generations. I worry that imposing a duty on it to carry out those activities would remove its element of discretion over whether such activities would be beneficial.
I appreciate that new clause 4 might be an attempt to establish what the Government see Natural England’s role to be in implementing the Bill. I told the fifth national seminar on commons in Cheltenham last year—an excellent event, which my hon. Friend the Member for Stroud attended—that I see Natural England becoming the Government’s champion for the management and well-being of common land.
We want Natural England to facilitate the establishment of commons associations where better management of a common would help to enhance biodiversity and public benefit, particularly on sites of special scientific interest, for example. However, imposing a duty to promote their formation in all cases might not be appropriate. Commons associations will be the key to improved management on some commons, but will not necessarily be appropriate for all of them.
The same applies to promoting the creation of greens. The Natural England bodies have a strong track record in local open space creation and protection, and we expect Natural England to build on that important work. Creation and protection of registered town and village greens is only one part of that activity.
Natural England is crucial to the implementation of the Bill and to the well-being of common land in general, but imposing a duty on it is unnecessary. I give an additional reassurance to my hon. Friends that I will write to Sir Martin Doughty, chair-designate of Natural England, enclosing a copy of what I have said, so that my expectations in respect of common land are clear at the outset.

Paddy Tipping: I am very grateful to the Minister for saying that Natural England will be a champion of common land, that it has a record of excellence in respect of village greens, and that he will write to Sir Martin Doughty, who is an enthusiast for these matters, as is the new body. Given that Natural England is following our discussions and will have the advantage of receiving a letter from the Minister, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New Clause 5

Advisory committees
‘The appropriate national authority may appoint a committee of not more than 15 or less than seven members, representative of commoners and the public interest in common land, to advise them on the discharge of their functions under this Act or any related matter.'. —[Mr. Paice.]

Brought up, and read the First time.

James Paice: I beg to move, That the clause be read a Second time.
This is a straightforward new clause, but the Minister probably will not be able to accept it as drafted as it may be deficient. It was suggested by the Royal Society for the Protection of Birds, among others, because of concern that professional advice to the national authority is needed on how it should go about doing things.
I do not wish to destroy the harmonious mood of the Committee in the past two days, but there have been times when some Opposition members of the Committee have felt that there was insufficient practical understanding of the implications of what was being discussed. Without rehearsing those matters, it is important that the Government, or the Welsh Assembly in the case of Wales, have the necessary advice on the practicalities and implications of the proposal.
We discussed earlier matters such as minimal and trivial works, which are all relevant to the Bill, and wider management issues such as what works should, or should not, be approved. On Tuesday, the Minister touched upon the body that he is setting up to bring together the registration officers and advise and help them in their functions under the Bill. That may be linked to my proposal, the principal purpose of which is to invite the Minister to explain how he sees the national authority moving forward. I hope that he will give us some more information about setting up the organisation for land registration officers and say where he will get practical advice to help him to fulfil the significant amount of responsibility that he, or the Department and his successors, will assume under the Bill. I stress the word “practical”, because I say specifically in the amendment that the national authority should be representative of commoners as well as those with a public interest in the land. The Government should use the real interests and the wealth of experience and knowledge of people who have held commons rights and applied them and used them for grazing—or indeed used any of the other rights that we have discussed—in applying their responsibilities under the Bill.

Jim Knight: The hon. Gentleman, as ever, is acting from the best intentions in wanting to ensure that the national authority acts on the best advice. However, it is not necessary to include that power in the Bill, as the national authority already has the power to establish a non-statutory advisory body, if it were felt to be appropriate.
We intend to establish a national stakeholder group to provide advice on the implementation of the Bill—but to do so on a statutory basis would introduce an unnecessary layer of bureaucracy and impose additional costs. In section 101 of the NERC Act 2006, we repealed no fewer than five committees established under various enactments, which had become redundant. We have rehearsed the arguments about this Bill being an opportunity that comes round rarely and wanting it to stand the test of time.
There will be a separate organisation from the national stakeholder group—the Association of Commons Registration Officers—which we have already started and funded for set-up costs. We also want to ensure that we use advice from other bodies that currently exist, such as the Welsh Commons Forum and the federations of commoners in Cumbria and Yorkshire. The Federation of Cumbria Commoners, with assistance from a rural enterprise scheme grant, has recently issued a series of good practice guides for commons, which we thoroughly welcome. We want to make sure that we are using such advice beyond the national stakeholder group.

James Paice: I am grateful to the Minister. As I said at the outset, I did not expect him to accept the amendment. Indeed, he has explained not only why he will not accept it, but why it is unnecessary. Nevertheless, it has given him the opportunity to place on the record the Government’s intention to set up such a stakeholder group.
It is getting late in the afternoon, but my right hon. Friend the Member for Penrith and The Border said that perhaps the stakeholders were useful in respect of the fencing measures that we referred to earlier—but that might be lost on some hon. Members. [Interruption.] Yes, it was much better when my hon. Friend was Chief Whip, because he was not allowed to speak. Nevertheless, I am pleased that the Minister will take up the idea of an advisory group, and I hope that it will involve a lot of people with the on-the-ground practical experience to which I referred. In that light, I beg to ask leave to withdraw the amendment.

Motion and clause, by leave, withdrawn.

New Clause 6

Rights of way on commons
‘Where a vehicular track running through a common or village green, roadside waste or verge can be shown to have existed and to have been used regularly by persons gaining access to their property from the adopted public highway and by visitors to such property since before 1st January 1966, such tracks shall from the commencement be deemed to be roads subject to a public right of way and not part of such commons, village greens or manorial wastes and shall vest in the parish council within whose parish they lie.'. —[Mr. Rogerson.]

Brought up, and read the First time.

Daniel Rogerson: I beg to move, That the clause be read a Second time.
The new clause relates to an issue highlighted by a learned gentlemen who resides in the constituency of my hon. Friend the Member for North Norfolk (Norman Lamb). It would clarify the situation relating to people’s ability to access property surrounded by common land. I am not greatly familiar with the case that gave rise to the new clause, but I can see how such circumstances might be a problem in an area with no recognised roadway, where people have customarily crossed common land to access their property. The new clause would provide an opportunity to deal with that situation by having the parish council take on that right of way and ensure that it is maintained. Any issues about crossing the common land could be resolved in that way.

Helen Goodman: I am slightly puzzled, although I appreciate the practical problems. Surely the hon. Gentleman is not suggesting that what is at the moment a track that is used by one or two people who live beyond common land should be kept up by the local authority, involving all the costs of tarmacking and so on? Will he clarify that?

Daniel Rogerson: Certainly. I understand the hon. Lady’s point. The intention is that the matter should go to the parish council rather than the highways authority, so the track would not need to be adopted in the same way as a road. The new clause refers to
“persons gaining access to their property from the adopted public highway and by visitors to such property”,
so it would affect the track that links to the public highway, which does not need to be maintained as a highway. It is referring to a right of way, not requiring it to be tarmacked and turned into a permanent road. That is the intention of the new clause.

David Drew: I want to ask the Minister a question about the problem of easements, which I have mentioned on various occasions. I thought that we had clarified the matter under the NERC Act, following questions that arose from the Countryside and Rights of Way Act 2000. Can the Minister clarify that the new clause is not necessary, because what the right hon. Member for Bracknell (Mr. Mackay) achieved in that Act stands in primacy over this measure? I could be persuaded that we need to nail the matter down even more exactly, because it is a great problem in my area, and I expect that it also affects the hon. Member for North Cornwall and others.
Where there is a lack of clarity about rights of way—particularly vehicular rights of way—there should be some attempt to make it clear that people crossing common land have extant rights of way. That has become an issue in my area, where there is a dispute with the National Trust. There is an understandable demand for a body to take ownership of pieces of land, because some people have had difficulty in selling their property in the absence of clarification about their rights, particularly vehicular rights of way, and whether they should be paying the so-called owner of the land. I hope that the Minister can provide such clarification, so that I do not need to support the new clause.

Jim Knight: In direct response to the point that my hon. Friend has just made, I recall what we did in the NERC Act in response to the problem raised by the right hon. Member for Bracknell in respect of his constituents and others; the problem was not restricted to Bracknell. That problem related to people who sought to access their private property via RUPPs—roads used as public paths. Some of the changes that we made under that Act would have threatened their ability to use those RUPPs with non-mechanically-propelled vehicles, because they would have reverted to what would now be restricted byways unless those people put in claims in time to convert them to byways open to all traffic. Given that that section came into effect in January 2005, as a retrospective measure, that would have been rather difficult for them. We made an arrangement for them to have private rights of way to their properties. That was not specific to common land; as I recall, it referred to access to all private property that relied on RUPPs.
It will not surprise the Committee to hear that we do not feel able to accept the new clause. It would turn what might, at best, be a private vehicle right into a public one, much along the lines mentioned by my hon. Friend the Member for Bishop Auckland (Helen Goodman). I imagine that even the home owners in question might not be particularly happy about that. The compulsory vesting of the land in question in the parish council, irrespective of who owns it now, is also a step about which we would be nervous.
We recognise that significant problems arose a few years ago, when home owners were being charged large capital sums to secure a legal right to drive over such land to their houses over commons, greens and the like. That problem arose because of the High Court judgment in the case of Hanning v. Top Deck Travel in 1993. That case seemed to indicate that home owners were unable to achieve prescriptive rights to drive to their homes in such situations under section 14(1) of the Road Traffic Act 1930—or, in the case of urban commons, after the passage of section 193 of the Law of Property Act 1925—because both statutes contain specific prohibitions on driving on such land. Quite a few landowners responded to that judgment by seeking payments from home owners for the privilege of continuing to reach their homes by car.
Faced with that wholly unacceptable situation, the Government enacted section 68 of the CROW Act 2000, to enable regulations to be made capping the amounts payable by home owners in such situations. Those regulations were made in 2002.
Happily, the House of Lords decided, in the case of Bakewell Management Ltd v. Brandwood and Others in 2004, that the original Hanning case of 1993 was wrongly decided. We would never have enacted section 68 of the CROW Act but for that case. Last year, we consulted on whether section 68 should be repealed. We took stock of the legal position, in light of the comments that we received, and we concluded that, in light of Bakewell, it is clear that section 68 serves no purpose.
We have a choice, and I am relatively relaxed about it. Indeed, hon. Members could canvass me on which way to go. We could leave section 68 extant, and possibly revoke the regulations that we made under it, as they no longer have any function. However, that might tend to perpetuate the confusion that has been all too apparent, as it might lead people to believe that section 68 had some residual purpose or utility.
Alternatively, we could use the Bill to repeal section 68. That would send the clearest possible message that the section is defunct. If the Committee favours the latter option, we are willing to table an amendment on Report to repeal section 68. I am sorry to have delayed the Committee with that explanation but it is a fairly complicated matter.

David Drew: I would prefer the second option, because we have only one legislative opportunity. If we want to make a clear statement about what should happen in the real world, I suggest that we do so now rather than wait for separate, presumably secondary, legislation, which could be long delayed. That is my hint to the Minister.

Jim Knight: If the hon. Member for North Cornwall responds in the same terms, I shall table such an amendment on Report.

Daniel Rogerson: I am grateful to the Minister for giving the matter a great deal of time and thought. I am sure that other hon. Members who know of such problems in their constituencies will bring them to his attention. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Schedule 1

Authorised severance

Jim Knight: I beg to move amendment No. 26, in schedule 1, page 32, line 8, at end insert
‘over which the right is exercisable'

Michael Weir: With this it will be convenient to discuss the following amendments:
No. 41, in schedule 1, page 32, leave out lines 9 to 21.
No. 108, in schedule 1, page 32, leave out lines 9 to 11 and insert—
‘(b) in the absence of a commons association established for the land, all the other dominant tenements in proportion to the rights already existing on the land.'.
No. 39, in schedule 1, page 32, line 21, at end insert—
‘(2A)
(a) where a person proposes to sever a right of common to which section 9 applies by transfer under sub-paragraph (1)(a) the commons association may further transfer the right, with or without consideration, to another person who holds rights of common attached to land for the same common.
(b) where a commons association transfers land under (2A)(a) it shall cause the appropriate variation to the Register in accordance with section 7.'.
No. 40, in schedule 1, page 32, line 22, after ‘sub-paragraph', insert ‘(2A) or'.
Government amendment No. 27.
No. 69, in schedule 1, page 32, line 33, at end insert—
‘(4A) Subsection (4) shall not apply where Natural England or the Countryside Council for Wales can show that severance is necessary to achieve favourable condition of a Site of Special Scientific Interest notified under section 28(1) of the Wildlife and Countryside Act 1981, as amended.'.

James Paice: Amendments Nos. 41, 39 and 40, which stand in my name, relate to the issue of the authorised severance of rights, as does the schedule. As drafted, the schedule makes it possible for those who want to transfer their rights voluntarily to transfer them to the commons association or to Natural England or the CCW in Wales. If they want to transfer them to the latter two, various things must be done under subsection (2).
There is some concern among the public about why Natural England or CCW would want, or should have, these rights. Neither organisation is likely to use grazing rights, as they are not farmers; they are not likely to want to cut turf or carry out any other rights that may be relevant. The understanding is that they will want to acquire them simply to extinguish them, to ensure that they are not used for conservation purposes. I question whether it is right for them effectively to extinguish those rights without other rights holders having the opportunity to be involved. Amendment No. 41 would remove the opportunity to transfer rights to Natural England or the CCW but leaves the possibility of transferring them to the statutory body.
Amendments Nos. 39 and 40 take a slightly different tack, which is probably preferable. They would enable the transfer to the statutory body but would then allow that body subsequently to transfer the rights, with or without some form of payment, to anybody else who already held similar rights on that piece of land, and that is the right way to proceed.
If there is a concern about over-grazing—there is in some cases, although on many commons there could increasingly be the problem of under-grazing—the process that the Bill sets up, the concept of statutory bodies having agreements under the stewardship schemes and so on, with Natural England and the CCW, is about the totality of management. That is the way to address the problems of over-grazing.
The remarks that I made on Tuesday are relevant in that regard: some people may have over-registered in the first place, for whatever reason, and that is often the cause of over-grazing. I strongly doubt that the people who over-registered will voluntarily transfer their rights to Natural England so that they can be extinguished; I might have more sympathy with the idea if that were the case.
I challenge the idea that Natural England or the CCW should be the recipients of the transfer of rights. If people want to give up their rights and transfer them, they should go to the association or statutory body, which should decide whether to keep them, to extinguish them or simply not to use them, which would be entirely within their rights, or to transfer them to other rights holders.
The under-grazing issue is especially relevant because the people who are most likely to want to transfer their rights are those who do not use them. It would be of no value to transfer them to Natural England to extinguish them, because they are not being used in the first place. Where there is a problem of under-grazing I contend that if those who are not using their rights could be persuaded to transfer them to the association and subsequently transfer them to someone who wants to use them it would go a long way to address the problem of under-grazing.
In some ways, this part of the schedule is backto front. As far as under-grazing is concerned, transferring to Natural England will not work. As far as over-grazing is concerned, agreements with Natural England through Government stewardship schemes are a better way forward than transfers, because I strongly suspect that the people responsible for the over-grazing will not be the ones voluntarily transferring their rights.
My amendments suggest that we should shift the balance and give the responsibility for agricultural management, which includes the use of rights, directly to the statutory body and let that body decide who should have the transferred rights. That is why I have moved the amendments. I hope that the Minister will consider them carefully.

David Drew: I rise to speak to amendment No. 69. The issue was brought to my attention by the Royal Society for the Protection of Birds, which wishes to take a slightly different perspective from the hon. Gentleman. The amendment would constrain the circumstances in which a commoners association, soon to be known as a commoners committee, could prohibit the transfer of severed rights to Natural England or the Countryside Council for Wales.
The Royal Society for the Protection of Birds is clear that it supports the Government position, as drafted in clause 9, that there should be a general prohibition on severance, as that will maintain the link between those who exercise rights of common and the local community for whose benefit such rights are exercised. However, the RSPB is worried that unless we amend schedule 1, it will be possible to sever commons rights. It is unclear why Natural England or CCW should not be the obvious recipient.
The RSPB’s main concern is that unless the Government reinforce what they are saying in clause 9, severance could go a step too far. Allowing a commoners association or committee to constrain the natural recipient—either Natural England or CCW—does not seem sensible.
The RSPB is concerned for two reasons. First, the Bill’s current wording could risk the loss of an important tool for delivering DEFRA’s public service agreement target for sites of special scientific interest, which requires that 95 per cent. of SSSIs by area should be in favourable condition.
Secondly, clause 28(3) disapplies section 28G of the Wildlife and Countryside Act 1981, which makes it clear that a commoners association or committee is not regarded as a public body with a duty to further the conservation of SSSIs consistent with its primary duties. The RSPB is worried that that would not necessarily be an ultimate priority of commoners committees, whereas it would be a prime responsibility of Natural England and CCW as public bodies. I hope that the Minister hears me and understands why those public bodies, with their particular responsibilities, are important as the natural recipients of severed land rights.

Daniel Rogerson: I rise to speak to amendment No. 108, which was tabled by my hon. Friend the Member for Brecon and Radnorshire and me. Its aims are broadly similar to those of the amendments tabled by the hon. Member for South-East Cambridgeshire.
We do not think that severance in principle is a good thing. We should like the rights to remain with the dominant tenements where they have customarily done so. If, however, it is felt for some reason that that must happen for the management of a common, we believe that it is vastly preferable that those rights should go to people who are actively involved in the life of the common.
Under-grazing is a growing problem. I could provide examples from Bodmin moor, where archaeologists are showing changes that have occurred and explaining how features of the landscape are no longer visible because of under-grazing. Under the single farm payment rÃ(c)gime and the move away from production, that problem is likely to grow. As for whether farmers in England will ever receive their payments under the single farm payment scheme, that is a discussion for another arena.
My final point relates to the history of common land and how it has been managed in the past. We have gone back to Acts dating from 1285 and the principle is that common rights are exercised by people who have dominant tenements in such areas. It is dangerous to move away from that principle, so we want the Minister to accept the amendment to prevent the rights from being moved to national organisations.

Elfyn Llwyd: I shall speak in support of the amendment, and inso doing I shall quote the RSPB briefing. Itstates:
“Thusthe legislation provides a mechanism to facilitate the bettermanagement of common land through the reduction of stock in instancesof over-grazing, and reintroducing or increasing stock in instances ofunder-grazing.”
The RSPBappreciates that the problem of under-grazing has a knock-on effect onthe whole environment. Who better to deal with that issue thancommoners? Why should such matters be farmed out to a national body forit to decide what is best for local people? I do not follow such logic.If the Government are serious about the Bill, they must realise thatthe amendments are good. They would lead to a proper, balanced use ofthe common.
Thearguments advanced by the hon. Member for South-East Cambridgeshirewere persuasive, inasmuch as those who have over-registered will notcare what happens to the common. However, people who are on the groundday in, day out care passionately because, if their stock over-grazes,it will destroy for everyone not only themselves as farmers, but thewhole environment. The more local, the better. The amendment would plugthegap.

Jim Knight: The powers of a commons association to dispose ofrights of common acquired under schedule 1 will be determined in itsestablishment order. The order could confer a freedom to dispose ofrights in gross as it thinks fit or it may provide that the associationmust retain the rights subject to arrangements for temporary letting.That will be a matter for discussion and negotiation in the context ofthe draft order. It is more appropriate to decide such matters on acase-by-case basis than to confer a blanket authorisation under theschedule. That is my response to amendments Nos. 39 and40.

James Paice: I appreciate that time is short, but we need to getmatters clear. If what the Minister said is the case, what is thepurpose of schedule 1? If we are to have flexibility, a word that thehon. Gentleman has used repeatedly in Committee, and settle suchmatters under individual orders for individual associations, why do weneed schedule 1? It stipulates clearly the rules governing who shouldtransfer to whom and how in cases of authorised severance. I press himfor clarification of the interaction between schedule 1 and theflexibility under the order to which hereferred.

Jim Knight: I may receive clarification, but I think that theorder is flexible only as regards the actions of the commonsassociation in respect of severance. Obviously, not everywhere willhave commons' associations. There are clear restrictions on suchmatters.
As foramendment No. 41, the powers of severance under paragraph 1 arelegitimate tools available to Natural England and the CountrysideCouncil for Wales to help tackle problems of over-grazing. I agree inprinciple with what the hon. Gentleman said about under-grazing.Natural England seeks to retain the powers only to tackle over-grazingas a last resort. There is also a role for Natural England where thereis under-grazing and no commoner is willing to exercise his or herrights. In such a case, Natural England could perhaps acquire rights byseverance in order to reintroduce grazing if it thought that that wasthe best option.
Wecannot reasonably expect all upland commons to be managed by commonsassociations or entered into agri-environment agreements. Elsewhere,where co-operation remains unforthcoming, we may have no othereffective mechanism to help reduce over-grazing but to acquire and sequester rights so that grazing pressures are reduced. There are nopowers to require rights to be sold. They must be sold, as the hon.Member for South-East Cambridgeshire said, with the vendor’sconsent.
Voluntaryacquisition of rights by English Nature has sometimes been disruptiveof existing hefting patterns. We have therefore amended the Bill toimpose a duty on Natural England to consult voluntary commoners' association before proceeding. We do not think that the powers will bewidely used. To date, they have been used only in a limited number ofcases, but it would be foolish to throw away a power that may still berequired to help the achievement of the PSA target.
I now come toamendment No. 69 tabled by my hon. Friend the Member for Stroud. I amgrateful to him for his suggestion. However, we think that it isunlikely that Natural England or CCW will act to acquire rights in thatway, other than in the most pressing circumstances, namely where thereis no other reasonable way of reducing grazing activity on designatedcommon land. His amendment will therefore effectively neuter the effectof paragraph 1(4) of the schedule, because it would refer to the onlycircumstances in which the provision is likely to haveeffect.
However, webelieve that it is very unlikely that Natural England will need toacquire rights by severance on a common in which a commons association is established. That would suggest that the association isseverely underperforming. So although an association may possess aveto, it would reflect poorly on the association if it were ever calledon to contemplate exercising it. At that point, Natural England mightwell talk to the National Assembly for Wales or the CCW about theperformance of the association, so we see no practical need to amendparagraph 1(4) in this way.
Finally, I turn to amendmentNo. 108 tabled by the hon. Member for Brecon and Radnorshire. The hon.Member for South-East Cambridgeshire asked an interesting question onTuesday, when we discussed clause 8 stand part. He asked whether rightscould be deployed if the dominant tenement was fully surrendered todevelopment. The amendment could perhaps provide an answer to thatquestion. The owner of the dominant tenement could sever the rights andsee them redeployed to other commoners. I can see the attraction inthat it would help the rights remain in agricultural use, even when thedominant tenement had been taken out of agricultural use.
For the most part, we thinkthat clause 11 provides a sufficient answer. Complete development willseldom arise, but we also foresee real difficulties with thatparticular approach. How many commoners, even though selling out theirfarm for development, would want to distribute their rights among allthe other commoners in the community? We all know of situations inwhich there is festering antipathy between one group of commoners andanother. How would the outgoing commoners secure payment for the rightsif the transaction were on the basis of all or nothing?
More practically, many of ourcommons are not neatly registered as one common with a clear statementof rights held by each commoner. Rights are often exercisable overdiffering areas of the common or over more than one common. In suchcases, the formula proposed under the amendment could cause endlessbickering. However, I am still thinking about the scenario that wasoutlined by the hon. Member for South-East Cambridgeshire on Tuesdayand, if I come up with a magical solution, I will offer it onReport.

Amendmentagreedto.

Amendmentmade: No. 27, in schedule 1, page 32, line 33, at endinsert—
‘(4A) In a casewhere there is no commons association established for the land overwhich a right of common to which section 9 applies is exercisable, theappropriate national authority may by order provide that a person withfunctions of management conferred by any enactment in relation to thatland is to be regarded, for any or all purposes of this paragraph, as acommons association established for the land.'—[JimKnight.]

David Maclean: I beg to move amendment No. 105, in schedule 1,page 33, line 45, leave out ‘and his consentobtained,'.

Michael Weir: With this it will be convenient to discussamendment
No. 63, inschedule 1, page 34, line 3, at endinsert
‘including provision thatthe appropriate national authority may deem that the consent of theowner of the land has been obtained where it appears to the authoritythat such consent has been withheldunreasonably.'.

David Maclean: We now come to one of the most crucial amendmentson the amendment paper, and that is not just my arrogant opinion, butthat of the Federation of Cumbria Commoners which the Minister waspleased to praise earlier for issuing excellent guidance. He said thathe was keen to follow that guidance so I hope that he will be keen alsoto follow its guidance and advice on theamendment.
Theamendment seeks to delete: “and his consent obtained”.That means that the owner of the land, who in 90 per cent. of caseswill be the lord of the manor, will have his consent deleted. He wouldhave to be notified, but would not have to consent. Why am I doingthis? I have two reasons. Never before has a lord of the manor orlandowner had the legal right to consent to atransfer—

Jim Knight: I am grateful to the right hon. Gentleman forgiving way, particularly as he has only just begun his argument. Incase something irritating happens and delays us discussing the matterfurther, I shall say now that I am actively considering the amendment.If we do something about it, we would need the consent of the Lords.Perhaps he might help facilitate that. I shall flesh that out if I havetime to respond more fully, but I thought that I would let him know atan early stage that I am sympathetic to hisargument.

David Maclean: I am delighted that the Minister is sympatheticand therefore I will not press my argument any further.
I hope that the Minister willagree that his colleagues in the Lords should be willing also to acceptit. I know that they have a different view, perhaps because they havelarge landholding and grouse-shooting interests unlike the commoners. Iam delighted that a Labour Government will at last back the commonersover those with big vested shooting interests. I support the right ofpeople to manage their grouse moors and to shoot on them, but theyshould be paying the market price for buying up commoners’rights. If I had such a veto and was a grouse-owning landlord I wouldveto every transfer of rights. The rights would then become worthlessand I would buy them up for a song myself. We need to avoid that and Iam delighted that the Minister has said that he basically accepts thespirit of the amendment and will do something about it onReport.
I am slightlyout of sync with my hon. Friend the Member for South-EastCambridgeshire and his amendment because I believe that it would bedifficult to prove “unreasonably”. If I owned the rights,it would not, in my view, be unreasonable to object to their transferbecause I wanted to buy them myself. So my amendment goes slightlyfurther than that of my hon. Friend, but I am delighted that inprinciple the Minister might be willing to accept it, or something likeit.

Jim Knight: I advise the right hon. Gentleman that I am morelikely to accept the amendment from his hon. Friend the Member forSouth-East Cambridgeshire, but that is something that we can discuss.We can correspond and possibly even meet up to do so.
I expressed nervousness aboutthe other place. The Bill is the result of a compromise achieved in theother place and if we are to push further we need to be confident thatwe do not start parliamentary ping-pong. I am sure that none of uswould likethat.

James Paice: I do not want to detain the Committee, but I wouldlike to put something on the record. Obviously if the Minister acceptsmy amendment I would be very happy, but I would be equally happy withthat of my right hon. Friend. The principle is that we have bothidentified a key problem that needs to be addressed, and I, too, wouldbe happy to negotiate with our friends in the other place ifnecessary.

Jim Knight: That is all very helpful. The sensible thing wouldbe for me to correspond with the right hon. and hon. Gentlemen, copyingin other Committee members, in the run-up to Report to ensure that wecan achieve a successfulconsensus.

David Maclean: I would not say that a compromise was reached inthe other place; we just could not get the votes to go as far as wewanted to. It is refreshing and interesting for a Labour Minister tosay, “The view in the Lords must prevail; we cannot upsetthem”. That is an intriguing thing to happen in thisCommittee.
I hopethat if the Minister and the Committee are in agreement, the primacy ofthe Commons might actually prevail on this occasion. We will do ourbest to persuade those in the Lords who might be taking the Tory whipthat this is the way in which we wish to proceed. However, if on Reportthe Minister brings forward my amendment, or deletes the relevantwords, and the Commons votes overwhelming for it, I am certain thatping-pong will not last long before their lordships agree to the senseof what the Commons has done. I beg to ask leave to withdraw theamendment.

Amendment,by leave,withdrawn.

Schedule1, as amended, agreedto.

Schedule2

Rectificationof mistakes etc under the 1965act

David Drew: I beg to move amendment No. 89, in schedule 2, page36, line 19, at endinsert—
‘(2A) This paragraphdoes not apply to land owned or managed by a local authority, board ofconservators or charity as an openspace.'.

Michael Weir: With this it will be convenient to discuss thefollowing:
Governmentamendment No.28
Amendment No. 90,in schedule 2, page 37, line 6, at endinsert—
‘(3A) This paragraphdoes not apply to land owned or managed by a local authority, board ofconservators or charity as an openspace.'.

David Drew: We are running out of time, so I shall be quick. I have not tabled the amendment just to get the board of conservators into the Bill. The amendment is important. It applies to those open spaces that were provisionally registered by their public body owners in the knowledge that that was not strictly correct, because all rights of common had been acquired and extinguished many years previously—nevertheless, no objection was raised and the registration became final. It is believed that that was done to perpetuate the memory of historic status. The amendment applies largely to urban centres, particularly London, where there are still a number of metropolitan commons as defined under the Metropolitan Commons Act 1866.
I move the amendment on behalf of the Open Spaces Society. I shall read the final sentence of its submission:
“It would be mischievous pedantry for this to be reopened now with no benefit to anyone, and the amendment would prevent this.”

Jim Knight: The purpose of paragraphs 4 and 5 of the schedule is to enable rectification of the register when land can be shown to have been wrongly registered under the Commons Registration Act 1965.
I cannot agree to the amendment; it would not be right to exclude certain types of landowner from the benefit of the provisions. As I understand it, the amendment accepts that land owned by some local authorities may have been incorrectly registered, but as those authorities’ purpose in seeking to remove the land from the register may be motivated by the possibility of development, we should make a special case for them.
I do not accept that. I certainly recognise the possibility that some authority-owned land was registered without objection, notwithstanding that its eligibility for registration was doubtful; some parks and recreation grounds may fall into that category. I find it less credible that we should expect a flood of applications from opportunist councils and charities to have the land removed from the register.
The provisions of the schedule should apply equally to all landowners. We should not say that we acknowledge that some land was improperly registered and that we are going to enable the land to be removed from the register, but that we do not trust local authorities to do the right thing. It is certainly possible that some wrongly registered land will be developed as a result of application under schedule 2. That would be unsurprising, because a mistake in registration may have held up development. However, we cannot complain about that result. I hope that my hon. Friend will withdraw his amendment.

David Drew: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment made: No. 28, in schedule 2, page 36, line 46, after ‘registration' insert—
(i) the land was covered by a building or was within the curtilage of a building; or
(ii) '.

—[Jim Knight.]

Schedule 2, as amended, agreed to.

Schedule 3 agreed to.

Schedule 4

Works: supplementary

David Drew: I beg to move amendment No. 36, in schedule 4, page 41, line 28, leave out
‘on or after 28th June 2005 but'.
I move this amendment, tabled in my name and that of my hon. Friend the Member for Sherwood. We seek clarification on why a specific date is set. The implication is that any transitional arrangements for enforcements against unlawful works under this schedule prior to that date will no longer be permitted. We are disappointed that, along with the lack of a specific duty on local authorities to take action against unlawful work, that element of the schedule would seem to be a diminution. I could quote many cases, but I shall sit down and either allow the Minister to say something or allow my hon. Friend the Member for Sherwood, who has now risen, to back up what I was saying.

Paddy Tipping: I am conscious of the time, and I apologise to my hon. Friends. The amendment’s intention is to return the Bill to the form in which it was originally published. Perhaps the Minister will tell us why the proposal to insert the June 2005 date was accepted in the House of Lords. Many obstacles across the country prevent a right to roam. Had that date not been put in the Bill, people who feel strongly on those issues could have taken enforcement action. Powers are available for the future but not in respect of the past.

Jim Knight: As my hon. Friend the Member for Sherwood has just said, the Bill extends the power to seek enforcement action against unlawful works to any person or organisation in future. Amendment No. 36 is about the past. The issue it raises boils down to whether any person or organisation should be able to ask the court to enforce against unlawful works that were undertaken before the Bill began its passage through the other place.
In practice, the question is not that simple. The Limitation Act 1980 rules out enforcement against works undertaken more than 12 years ago, and the effective window for action tends in fact to be much shorter than that, because the courts, which have a discretion rather than a duty to act, tend to look critically at any suggestion that they should enforce against works that are more than a few years old. So, there is likely to be a limited number of cases in which the amendment would make a practical difference to the enforcement position.
Our view is that where works were undertaken within that narrow time window without consent, it would not be right for us to open up the scope for anyone at all to seek enforcement action. In the end, those responsible for such works did what they did, and bore the cost of doing so, on the basis of the limited enforcement regime that then applied. There is a strong presumption against legislation having a retrospective effect. We think that the provision as it stands, without the amendment, strikes a fair balance. We do not think it would be just to allow any person—

Tom Levitt: I shall be very brief. If an existing barrier were to be changed, does the Minister envisage that it would count as a new barrier, which could then come under the clause as the Minister envisages it, or would it be caught under the old pre-June 2005 issue?

Jim Knight: If further works, such as maintenance or an extension, are undertaken in relation to old works, that may allow any person to take enforcement action against them if the new works do not have consent. I hope that answers my hon. Friend’s question. I hope that on that basis, my hon. Friends will not press the amendment to a Division.

David Drew: I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Schedule 5 agreed to.

Schedule 6

Repeals

Amendments made: No. 29, in schedule 6, page 46, line 4, at end insert—
‘Commons Act 1876 (c. 56)
Section 31.'
No. 30, in schedule 6, page 46, line 16, at end insert—
‘Part 4
Repeal relating to schemes under the commons act 1899

Short title and chapter

Extent of repeal
Commons Act 1899 (c. 30)
In section 1(3), the words from “, and for” to the end.'
—[Jim Knight.]

Schedule 6, as amended, agreed to.

Question proposed, That the Chairman do report the Bill, as amended, to the House.

Jim Knight: Given that we have concluded our deliberations, may I take the opportunity to thank you, Mr. Weir, and Miss Begg most warmly—I am pleased to hear that other Committee members agree—for your excellent stewardship of our proceedings.
I wish to thank the Committee for the constructive and helpful way in which—

David Maclean: I am grateful to the Minister for giving way. As the most senior Privy Councillor present, with years of experience in these matters, and because of the non-partisan nature of the proceedings, I trust that when the Bill gets Royal Assent, the Minister will hold a proper little drinks party to thank his officials, and that he will feel it important, on this occasion, to invite all members of the Committee, who have behaved impeccably—including the officials, yourself, Mr. Weir, and Miss Begg—to Nobel house to continue our bipartisan relationship, and so that the Minister is not accused of favouritism.

Jim Knight: I think that I am grateful to the right hon. Gentleman for that invitation to a party that I am now going to host. I am sure that it is something that we can consider, because it is proper that everybody should be thanked, particularly my officials. Much praise was given to them on Second Reading on account of the clarity of the explanatory notes. I hope that they have also made my notes clear—their in-flight refuelling has been prompt and effective. I should also like to thank the Whip for his work in steering us almost exactly to time.

James Paice: Mr. Weir, I am not going to try to emulate my right hon. Friend the Member for Penrith and The Border, not least because I am not as generous as he is with other people’s money—or with my own. However, I entirely endorse the remarks that the Minister has made, and add my thanks to him and his officials for the way in which they have conducted themselves not only in Committee but prior to the Bill’s coming to Committee. They have been more than open to discussions about how we might handle matters. I am grateful, particularly, for the way in which the Minister has responded—in most cases—to amendments that we have proposed and to the issues that have arisen from them. He promised to go away and consider a number of matters, but he agreed to consult openly on three: possible alterations to the register; the name of the statutory bodies; and developments that are already under way. I look forward to those discussions.
I understand that we will not debate this Bill on Report next week or the week after, so we have a reasonable amount of time. However, I am sure that the Minister will want to ensure that before we reach that stage we continue to deal with the issues, as my right hon. Friend said, in a non-partisan way so as to get it as right as possible, because we will not be the ones—nor, probably, will our immediate successors—who are asked to address the matter again. I am particularly grateful to the Minister for the attitude that he has taken, and to you, Mr. Weir, and to Miss Begg.

Roger Williams: I, too, would like to thank you,Mr. Weir, and Miss Begg, for your wonderful chairmanship, which has contributed to the success of our consideration of the Bill. I, too, welcome the Minister’s positive approach to it, and he can be assured of our equally positive contribution. A number of issues that have been highlighted during our considerations are outstanding, and the Bill would be improved if they were addressed. I look forward to working with the Minister and his team in trying to ensure that we come to the best possible conclusion on those matters.

Elfyn Llwyd: I echo everything that has been said,Mr. Weir. I have done enough bowing and scraping for one day.

Michael Weir: Thank you all very much.

Question put and agreed to.

Bill, as amended, to be reported.

Committee rose at one minute to Four o’clock.